iminal Appeal No 76 of 1958
Appeal by special leave from the judgment and order dated March 4 1958 of the Patna High Court in Criminal Appeal No 50 of 1958 and Death Reference No 3 of 1958 arising out of the judgment and order dated January 18 1958 of the Court of the 1st Additional Judicial Commissioner of Chotanagpur at Ranchi in Sessions Trial No XC of 1957
B R L Iyengar for the appellant
1338 R H Dhebar for the respondent
September 19
The Judgment of the Court was delivered by section K DAS J
This is an appeal by special leave
The appellant is Ratan Gond aged about 28 years
Tried on a charge under section 302 Indian Penal Code he was convicted and sentenced to death by the learned Additional Judicial Commissioner of Ranchi in the State of Bihar
The learned Additional Judicial Commissioner submitted the record to the High Court of Patna for confirmation of the sentence as he was required to do under the provisions of section 374 of the Code of Criminal Procedure
Ratan Gond also preferred an appeal to the High Court
The appeal and the reference under section 374 Criminal Procedure Code were heard together by a Division Bench of the said High Court and it accepted the reference and dismissed the appeal thereby confirming the sentence of death passed upon the appellant
On May 19 1958 the appellant prayed for and obtained special leave and then filed the present appeal in pursuance of the leave granted to him
The facts lie within a narrow compass
The appellant was a resident of village Urte Tola Banmunda police station Kolebera in the district of Ranchi
One Mst
Jatri P W 2 who was a widow also lived in the same village and same Tola
She had two young daughters one named Baisakhi and the other named Aghani
Baisakhi was about nine years old and Aghain about five years old
The subject of the present appeal is the murder of the girl Baisakhi
On a Tuesday May 7 1957 the two sisters Baisakhi and Aghani had gone out to Pluck wild berries in a hilly jungle situated at a short distance from their village the distance being estimated variously by various witnesses from 300 yards to a little more than a mile
We may give here some idea of the location of the village and the hilly area near it
According to the evidence of Rup Ram P W 1 uncle of the two girls Tola Banmunda consists of about 40 houses
At a short distance to the north there is a hilly tract known 1339 as Amtis Chua hill
Close to the hill there are jungles on two sides and there is also a spring or well in between the two strips of jungles
On Tuesday Mst
Jatri P W 2 had herself gone to pluck berries known as Keond berries at another place
When she left the house in the morning her two daughters were in the house
Jatri came back at about noon and found Aghani alone in the house
She enquired from Aghani about the elder sister Baisakhi and Aghani made certain statements to her mother as well as to other persons later that day and the next day
Aghani however died within a few months of the occurrence before her statements could be recorded in a judicial proceeding
The courts below have referred to and the High Court has relied on the statements of Aghani
One of the points urged on behalf of the appellant is that the statements of Aghani were not admissible in evidence either under section 32 or section 33 of the Evidence Act I of 1872
As we are of the view that this contention is correct we are omitting all reference to the statements of Aghani in stating the facts of the case
When Baisakhi did not return to the house even in the evening Mst
Jatri went in the direction of Amtis Chua hill but could not find Baisakhi
Next morning information was sent to Rup Ram P W 1 about the fact that Baisakhi was missing Rup Ram having gone to village Targa for making tiles on the preceding Monday
Rup Ram came back to Banmunda on Wednesday May 8 1957
In the meantime certain other villagers including Dalpat Sai P W 4 mukhia of the village and Sohar P W 5 chaukidar of the village had been informed that Baisakhi was missing
Aghani took Rup Ram and these villagers to the foot of Amtis Chua hill and showed them the spring or well
This village party found the headless body of Baisakhi at a short distance from the aforesaid spring
The body was identified by Mst
Jatri and others as the dead body of Baisakhi by reason of the white saree of yellow border which Baisakhi was wearing five red  churis  round the right hand two red  churis  round the 170 1340 left hand one  bera  round the left hand one brass ring on the left finger and certain beads of a  mala  which Baisakhi had put on
When the headless dead body was discovered and identified Dalpat Sai left some of his companions to guard the dead body and went to the house of the appellant but did not find him there
He then sent Rup Ram and the chaukidar to the police station which was at a distance of 43 miles
He also sent some volunteers of the Gram Panchayat to look for the appellant
On Thursday May 9 1957 at about 10 am Rup Ram and the chaukidar appear ed at the police station of Kolebera and Rup Ram gave an information which was recorded by the Assistant Sub Inspector of Police
This information referred to the statements of Aghani and to the other facts which had been discovered by that time
On the same Thursday the appellant was found in the house of his sister s husband in another village called Karmapani
The appellant was caught hold of by the village volunteers and brought back to village Banmunda on Thursday
At about 1 or 2 p m on that day he was questioned by Dalpat Sai PW4 mukhia of the Gram Panchayat Krishna Chandra Singh P W 7 Sarpanch of the Gram Panchayat and Praduman Singh P W 13 one of the panches of the Panchayat and it is stated that the appellant made an extra judicial confession to these persons to the effect that he had killed the child Baisakhi for greed of money as a contractor who was building a bridge on the Lurki river had offered Rs 80 for a human head
The appellant was detained by the aforesaid village authorities till the Assistant Sub Inspector of Police arrived at the village on Friday May 10 1957
The Assistant Sub Inspector arrived at about 3 am
He was taken to the place where the headless dead body of Baisakhi lay
The Assistant Sub Inspector made an inquest on the dead body and seized the articles found there including 29 beads of the  mala   which Baisakhi was wearing and which lay scattered near the place
The Assistant Sub Inspector of Police arrested the appellant who was already in custody of the mukhia
The house of the 1341 Weapon called  balua  was found in the north facing room of the house between a wall and the roof
This  balua  had certain blood stains on it but the stains having disintegrated the origin of the blood could not be determined
It is stated that on being questioned where the head of the girl Baisakhi was the appellant took the Assistant Sub Inspector of Police and some of the villagers to a place at a short distance of 100 yards or so from where the dead body was
At that place were discovered some strands of bloodstained hair which were seized by the Assistant SubInspector of Police
The strands of hair looked like the hair on the bead of a female person and the Chemical Examiner later reported that the strands of hair were stained with human blood and appeared to be scalp hair of human female origin morphologically 
After further investigation by two different Sub Inspectors of Police the appellant was sent up for trial
There was an enquiry by a Magistrate of the first class who at the conclusion of the enquiry committed the appellant for trial by the Court of Session
The defence of the appellant was that he had been falsely implicated
He denied that he killed Baisakhi near the jungle at Amtis Chua hill
He further denied that he had made any extra judicial confession to Dalpat Sai Krishna Chandra Singh and Praduman Singh
He denied that any blood stained weapon was found in his house by the Assistant Sub Inspector of Police and he also denied that he was absent from his village or was found in the house of his sister s husband in village Karmapani
The learned Additional Judicial Commissioner as also the High Court rightly stated that the case against the appellant rested on a circumstantial evidence and b the extra judicial confession stated to have been made by the appellant
The courts below concurrently held that the extra judicial confession was voluntary and it did not appear to them to have been caused by any inducement threat or promise having reference to the charge made against 1342 he appellant so as to attract the provisions of section 24 of the Evidence Act
They further held that the confession though later denied by the appellant was sufficiently corroborated by the circumstantial evidence and the confession and the circumstantial evidence read together led to only one reasonable inference  namely that the appellant had killed the child Baisakhi in the hope of getting some money
It is not disputed that in an appeal filed by special leave under article 136 of the Constitution it is not normally open to the appellant to raise questions of fact or to ask for interference by us with concurrent findings of fact unless the findings are vitiated by errors of law or the conclusions reached by the courts below are so patently opposed to well established principles as to amount to a miscarriage of justice
Mr Iyengar for the appellant has urged before us three main points
Firstly he has submitted that the extra judicial confession said to have been made by the appellant is not admissible in evidence
Secondly he has contended that even if admissible there is no guarantee of its truth
Thirdly he has submitted that even with regard to circumstantial evidence the courts below have relied on inadmissible evidence with particular reference to the statements of Aghani to establish one of the circumstances namely that the appellant was last seen with Baisakhi before her murder
His argument is that the other circumstances established against the appellant namely the recovery of the blood stained  balua  of the blood stained hair and the absence of the appellant from the village on Wednesday do not carry the case against the appellant far enough so as to complete the chain and make them inconsistent with any hypothesis other than the guilt of the appellant
He has submitted that in considering the circumstantial evidence in this case the courts below have departed from the well established principle that the circumstances affirmatively proved against an accused person must be of such a character as to be consistent only with his guilt and inconsistent with any reasonable hypothesis of his innocence
1343 Before we examine the aforesaid submissions it is necessary to state that the finding of the courts below that Baisakhi was murdered some time between May 7 and May 8 1957 and that the headless dead body which was discovered on May 8 1957 was correctly identified as the dead body of the girl Baisakhi has not been challenged before us
The postmortem examination on the dead body was held on May 11 1957 and the ante mortem injuries which the doctor found were 1 complete severance of the head from the neck2one incised wound on the left shoulder and 3 anincised wound on the left upper arm
The doctor s evidence makes it quite clear that the unfortunate girl was brutally done to death
The identification of the headless dead body also rests on a very sure foundation
We have already referred to the clothing ring beads etc from which the identity of the dead body was established
The murder of the girl Baisakhi having been clearly established the courts below rightly applied their mind to a consideration of the principal question in the case namely if the appellant was responsible for that murder
This brings us to a consideration of the submissions made on behalf of the appellant
We may say at the very outset that we agree with learned counsel for the appellant that the statements of Aghani who unfortunately died within a few months of the occurrence before her statements could be recorded in a judicial proceeding were not admissible in evidence either under section 32 or section 33 of the Evidence Act
Section 33 is clearly out of the way because Aghani made no statements in a judicial proceeding or before any person authorised by law to take her evidence
The only relevant clause of section 32 which may be said to have any bearing is cl
1 which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death
In the case before us the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death  on the contrary the statements relate to the death of her sister
We are therefore of the opinion 1344 that the statements do not come within section 321 of the Evidence Act and indeed Mr Dhebar appearing on behalf of the State has conceded that section 321 does not apply to the statements of Aghani
Excluding the statements of Aghani what then is the evidence against the appellant  Firstly we have the extra judicial confession
Then we have the following circumstances which the courts below have held to have been clearly established against the appellant namely a recovery of the blood stained  balua  from a room of the appellant b recovery of the blood stained strands of hair from a place pointed out by the appellant and c disappearance of the appellant from the village immediately after the murder and his arrest in village Karmapani in circumstances mentioned by Maheshwar Sai P W 6
Lastly there is another adverse circumstance which arises out of the total denial by the appellant of the recovery of the blood stained  balua  and of his arrest in village Karmapani
As to the extra judicial confession two questions arise is it voluntary and if so is it true  The appellant denied at a later stage that he had made a confession but it is not necessary to consider in this case the abstract question as to whether as against its maker a conviction can be based on a confession which is found to be voluntary and true
It is enough to state that usually and as a matter of caution courts require some material corroboration to such a confessional statement corroboration which connects the accused person with the crime in question and the real question which falls for decision in the present case is if the circumstances proved against the appellant afford sufficient corroboration to the confessional statement of the appellant in case we hold that the confessional statement is voluntary and true
Let us first see if the confession was voluntary
Section 24 of the Evidence Act states 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 1345 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 
Mr Iyengar has referred us to the evidence of the three witnesses Dalpat Sai PW 4 Krishna Chandra Singh P W 7 and Praduman Singh P W 13 Mukhia Sarpanch and Panch respectively of the Gram Panchayat
We agree with Mr Iyengar that having regard to the provisions of the Bihar Panchayat Raj Act Bihar VIII of 1948 the aforesaid three persons can be said to be persons in authority within the meaning of section 24
The question however is are there any circumstances which tend to show that the making of the confession appears to have been caused by any inducement threat or promise having reference to the charge against the appellant and proceeding from any one of the aforesaid three persons and sufficient in the opinion of the court to give the appellant grounds which would appear to him to be 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
The courts below have categorically answered this question in the negative
We have examined the evidence of the three witnesses mentioned above
That evidence shows that the appellant was brought to the house of Dalpat Sai P W 4 at about 10 am on Thursday May 9 1957
He was questioned for some time Dalpat Sai PW 4 said that he was questioned for about two hours
The evidence of Dalpat Sai makes it clear however that it was not a process of continuous questioning for two hours
Ratan was given some food and then when he was questioned he kept quiet for some time and then said that he had killed the girl because the contractor who was building the bridge on river Lurki had offered to pay a sum of Rs 80 for a human head
Having examined the evidence of the three witnesses who prove the extra judicial confession we do not come to 1346 a conclusion different from the one arrived at by the courts below
Mr Iyengar referred us to the observations made by Cave J as he then was in The Queen vs Thompson1
That was a case in which a prisoner was tried for embezzling the money of a company
It was proved at the trial that being taxed with the crime by the Chairman of the company the prisoner said that he had taken the money
The Chairman stated that at the time of the confession no threat or promise was made but he said to the prisoner s brother  It will be the right thing for your brother to make a statement  and the court drew the inference that the prisoner when he made the confession knew that the Chairman had spoken these words to his brother
In these circumstances the learned Judge said  I prefer to put my judgment on the ground that it is the duty of the prosecution to prove in case of doubt that the prisoner s statement was free and voluntary and that they did not discharge themselves of this obligation 
He further added that there were always reasons to suspect those confessions which were supposed to be the offspring of penitence and remorse and which nevertheless were repudiated by the prisoner at the trial
It is true that in the case under our consideration the appellant denied to have made the confession which he had made earlier but we find no such circumstances as were present in Thompson s case 1 such as the statement of the Chairman of the company to the brother of the prisoner
It is true that the appellant was brought back from village Karmapani by members of the village volunteer force
He was taken to the village authorities to whom he made a confession
The evidence does not even remotely suggest that any threat promise or inducement was made
The only circumstance relied on by Mr Iyengar is that it took about two to three hours from the time when the appellant was brought to the house of the mukhia up to the time when he made his confessional statement
Mr Iyengar has relied on In re Kataru Chinna Papiah 2 where a Superintendent of Police questioned the accused person for four hours at night 1  18
2 AIR 1940 Mad
136 1347 and again for two hours in the morning
It was pointed out that this was a flagrant violation of the relevant rule in the instructions issued to police officers
All that we need say is that there was no such questioning in the present case
Another decision to which Mr Iyengar has invited our attention is Hashmat Khan vs The Crown 1
We do not think that that decision is of any assistance to Mr Iyengar
It was held therein that a mere possibility of there having been some inducement is not sufficient to attract section 24 of the Evidence Act but only when it appears to the court that the confession has been made as a result of some inducement held out by a person in authority that it becomes irrelevant
That was a case in which the accused person when questioned was told that it would be better for him if he told the truth it was held that this amounted to an inducement within the meaning of section 24 of the Indian Evidence Act
As to the truth of the confession nothing has been brought to our notice which would show that the confessional statement contained any untrue or inaccurate statement
It is true that the prosecution has given no evidence to show that the contractor who was building the bridge over river Lurki or for that matter any contractor had offered a sum of Rs 80 for a human head
In the very nature of things it is not expected that any contractor even if he had made such an offer will admit having done so and we do not think that the prosecution can be asked to give evidence in support of any such offer
We recognise that in ordinary and normal circumstances nobody asks for a human head for building abridge nor is it usual normally for a person to accept such an offer even if it is made
We must not forget however that we are dealing in this case with aboriginal people who are still steeped in superstition
It is worthy of note that Maheshwar Sai P W 6 said that when the appellant was taken in custody in village Karmapani he did not even enquire why he was arrested on the contrary he offered Rs 20 and a he goat to the witness and 1 Lah
171 1348 implored the latter to save him
Such a statement was again of an incriminatory nature and if the evidence of Maheshwar Sai is correct the statement was absolutely voluntary and was not the result of any questioning at all
For these reasons we do not think that the reference to an offer of Rs 80 for a human head in the confessional statement of the appellant necessarily destroys its veracity
There can be no doubt that the recovery of the blood stained  balua  even though the origin of the blood could not be determined owing to disintegration and of the blood stained strands of female hair at the place pointed out by the appellant are circumstances clearly proved against the appellant
These circumstances may not be sufficient by themselves to prove that the appellant was the murderer but there is no doubt that they lend assurance to the confes sional statement of the appellant assurance of a kind which connects the appellant with the crime in question
This is a case in which the confession and the circumstances have to be read together
There is the additional circumstance that soon after the murder the appellant disappeared from his village and when arrested in another village his conduct was such as to show that he was suffering from a guilty mind
On the top of all this there is the total denial by the appellant that any blood stained  balua  was recovered from his house or that he disappeared from the village after the murder
It is unfortunate that the learned Additional Judicial Commissioner did not ask the appellant to explain the recovery of the blood stained strands of female hair
That was an important circumstance against the appellant and when the learned Additional Judicial Commissioner examined the appellant under the provisions of section 342 of the Code of Criminal Procedure he should have asked the appellant to explain this circumstance
We take this opportunity of inviting the attention of the learned Additional Judicial Commissioner to this very serious omission
Another omission on the part of the learned Additional Judicial Commissioner is his failure to comply with the provisions of section 287 of the Code of 1349 Criminal Procedure
The examination of the accused recorded by or before the Committing Magistrate does not appear to have been tendered by the prosecutor in the present case at least we do not find any such statement in the printed paper book
We are satisfied however that no prejudice has been caused
The Assistant Sub Inspector of Police who gave evidence of the recovery of blood stained hair from a place pointed out by the appellant was not even cross exa mined on the point
The defence of the appellant was a total denial and even if the recovery of the blood stained strands of female hair was put to the appellant he would undoubtedly have denied such recovery as having been made at his pointing out the place
To sum up we see no reasons to differ from the conclusion arrived at by the courts below that the confessional statement made by the appellant was voluntary and admissible there are no reasons for thinking that it was not true
The circumstances clearly proved against the appellant even excluding the circumstance which rested on the statements of Aghani afford sufficient corroboration to the confession of the appellant though denied at a later stage and the corroboration is of such a nature as to connect the appellant with the murder of the child Baisakhi
The only reasonable inference which can be drawn from the confession read with the circumstantial evidence is that the appellant killed the child Baisakhi between May 7 and 8 1957 in the hope of getting some money
Whether that hope was realised or not is more than we can tell
The head was never recovered but there can be no doubt that the dead body was correctly identified to be the dead body of the child Baisakhi
As to the sentence in view of the circumstances in which the child Baisakhi was killed we do not think that we shall be justified in interfering with it in the present case
For these reasons we hold that the appeal is without merit and must be dismissed
Appeal dismissed


Summary:
The appellant is a firm dealing in the manufacture and sale of Tents and Tarpaulins at Jodhpur in Rajasthan
It carried on a regular business of supplying these goods to defence services
The Director General of Supplies and Dis posal invited tenders for the supply of tents and the appel lant firm submitted its tender which was accepted
The said contract was of two kinds of tents viz Flies Inner and Flies Outer the agreed rate of the latter was Rs225 per tent and the quantity was 15000
As per the terms of the contract the goods were to be inspected at the premises of the appellant firm and after inspection the same were to be despatched to Commandant COD Kanpur
As regards the mode of payment of the price of the goods 95 of the price was to be paid on proof of despatch of goods and production of inspection note and 5 latter
On October 14 1968 one consignment of 1500 tents was despatched to COD Kanpur from Jodhpur by the appellant under Railway Receipt No 502671 and 95 of the price was paid to the appellant
The commandant COD Kanpur the consignee reported that 224 tents out of the said sale consignment had not been received at Kanpur and for that reason a sum of Rs51912 being the price of 224 tents was deducted from the amounts due to the appellant under anoth er contract
The Traffic Officer Commandant COD had filed a claim with the railways for short delivery of 224 tents
Despite repeated requests by the appellant for the payment of the said amount the same was not paid to it
As such the appellant filed a suit in Delhi High Court for the recovery of the principal amount as also for the interest thereon
In the suit the appellant also claimed interest on two other consignments as its balance price ie 5 amount ing to Rs24357 was paid after a delay of 3 years and thus a sum of Rs8525 was claimed as interest  12 per annum from 1169 to 11271
Thus the total claim was of Rs74972
128 The defence of Respondents 1 2  5 was that 224 tents were received short and as such a sum of Rs51912 its price was rightly deducted from the appellant s bill
Respondents 3  4 Railways  Officials filed a State ment that only 11 tents were delivered short for which the admitted liability was Rs2475 the same having been paid to COD Kanpur by debit adjustment
The Trial Judge by his Order dated February 12 1982 dismissed the claim of the appellant substantially but so for as the amount of Rs2475 regarding the shortage of 11 tents was concerned the same was decreed with interest
Against the Judgment and Order of the Trial Judge the appellant preferred an appeal before the Division Bench of the High Court and the same having been dismissed the appellant has come up in appeal to this Court after obtain ing Special Leave
Allowing the appeal this Court HELD In view of the terms and conditions of the con tract embodied in clause 11 of the schedule of acceptance of tender regarding the place of delivery FOR Jodhpur the property in the goods passed immediately on to the seller after delivering the goods and loading the same in the railway wagons at Jodhpur for transmission to the buyer the consignee without reserving any right of disposal
136D On consideration of the place of delivery as well as the terms of delivery embodied in clause 11 of the schedule of Acceptance of Tender the property in the goods alongwith the risk in the goods passed from the appellant to the Respondent No 5 when the goods were delivered and dis patched by railway wagons at Jodhpur ie FOR Jodhpur
The consignee Commandant COD Kanpur is therefore liable for the price of 224 tents which was deducted by him from the other bills of the appellant
137A B The plaintiff is entitled to get a decree of interest on the price from 1169 to 1121971  6 per annum which is considered to be a reasonable rate of interest as claimed by the plaintiff appellant
139C Girija Proshad Pal vs The National Coal Co Ltd AIR 1949 Cal
472 The Commissioner of Sales Tax Eastern Divi sion Nagpur vs 129 Husenali Adamji  Co 1959 2 Supp
SCR 702 BB Bose vs National Coal Trading Company AIR 1966 Patna 346 and Ms MKM Moosa Bhai Amin Kota vs Rajasthan Textile Mills Bhawanimandi Raj
LW 77 referred to