Emperor vs Baharuddin

Rowland, J.—This is a reference by the Sessions Judge of Santal Parganas for confirmation of the sentence of death passed u/s 302, Penal Code, on Baharuddin alias Bahardi Shaikh, convicted of the murder of Noor Muhammad. The prisoner has also appealed from his conviction. The crime is said to have been committed on the evening of Monday, 23rd May 1932, by the accused and two other persons Bara Raju and Chhota Raju. Of these Bara Raju was arrested not long after the crime and was tried and convicted. Chhota Raju has not yet been arrested. The prisoner was arrested on 27th April 1936.

The deceased was son of Samardi or Samruddin Momin of village Gaganpahari, Police Station Pakaur, and was living in his father''s house. He was in the habit of going out in the evenings to music parties in company with Bara Raju, Chhota Raju and the prisoner with whom he was outwardly at least on good terms.

It is the prosecution case that on 23rd May at about candle light time Chhota Raju called Noor Muhammad who went with him, a drinking party had been arranged consisting of the two Rajus, the prisoner and Noor Muhammad. Toddy was brought for them by the witnesses Jerat and Waris, and the party all drank together. Then a scuffle arose, Bara Raju, Chhota Raju and the prisoner attacking Noor Muhammad. The prisoner cut the throat of Noor Muhammad. Subsequently the body was thrown in the river Katasi, about a mile away to the north. It is certain from the evidence of Samaruddin and other witnesses that Noor Muhammad was not seen alive after 23rd May. The family were apparently not particularly anxious on the Tuesday, but serious inquiries were made on Wednesday, 25th May, which did not lead to any clue. On Thursday, 26th May, Samaruddin accompanied by Chaukidar Parbati went to the police station and reported the absence of his son. He again went to the police station the following day, 27th May, and informed the Sub-Inspector of a clue that he had obtained from Mohar Shaikh. This Mohar was not available as a witness in the present proceedings, it being in evidence that he died about two years ago. The police took no action beyond making an entry in the station diary on Samaruddin''s report of the 27th. Thereafter Samaruddin obtained a further due from Munshi Momin in consequence of which he went to the police station again on Sunday, 29th May, and laid a first information of murder against Turab, Chhota Raju, Bara Raju and Baharuddin.

The Munshi who gave the clue referred to in this first information died before the trial of the prisoner but had been examined in the committing Magistrate''s Court. His deposition has been taken in evidence u/s 33, Evidence Act. The substance of his deposition is that late at night on the Monday he saw Turab Biswas, Bara Raju, Chhota Raju, the prisoner, and Sulaiman going towards the river Katasi and that Turab was carrying a heavy bundle on his head. There was no cross-examination in the commitment proceedings, and we have therefore no material on this record for testing the veracity of Shaikh Momin. It may however be significant that from the day that Munshi made that statement to Samaruddin the accused was missing from the village. The Sub-Inspector took up investigation and on the same day obtained the statement of Jerafc, one of the witnesses pat forward by the prosecution to prove the crime. It was on 30th May that chaukidars found the body lying in the bed of the river Katasi, which suggests that it had in fact been taken in the direction previously indicated by Munshi. The discovery was reported to the Sub-Inspector who held inquest on 31st. The dead body was tied up in a black striped chadar cloth twisted twice round the neck, the throat was cut, and there were two marks of injury on the chest. These, latter injuries are described by the Sub-Assistant Surgeon who held the post-mortem examination, as contusion marks and lacerated wound, both superficial; but the injury to the neck was a wide gaping wound right across the throat separating all the structures up to the vertebral column and was the cause of death. The other eye-witness Waris was not examined till 10th June. He left the village on Saturday (28th May) and explains his absence by saying that he had gone to Pindatola in search of employment.

The direct evidence of the crime is only that given by Jerat and Waris. The prosecution has sought to corroborate their evidence by proving that they made statements similar to those now made in Court very shortly after the alleged occurrence; secondly, by corroborative evidence as to the toddy drinking party; and thirdly, by the deposition of Munshi that on the Monday night he saw Chhota Raju, Bara Raju and the prisoner going at night with Turab and Sulaiman and that Turab was carrying a heavy bundle on his head.

The defence is a plea of innocence and of ignorance as to the murder. In argument it is contended that the evidence of the principal witnesses is unsatisfactory, improbable and discrepant, and that the prosecution have failed to prove the motive for the crime. As regards motive, the prosecution have not set up any allegation of enmity between this accused and deceased. But the deceased had been in the service of Turab Biswas, a near neighbour of accused, and had left rather suddenly. There was a suspicion (to say the least) of intrigue between deceased and the wife of Turab; and the view taken by the Sessions Judge is that the accused with Bara Raju and Chhota Raju did the murder at the instigation of Turab. Turab was tried and acquitted in 1932 there being no direct evidence against; him and the circumstantial evidence being insufficient. But that does not disprove the existence of a possible motive which is indicated by the evidence and might well have led to the commission of the crime.

We have examined the evidence of the two eye-witnesses Jirat and Waris. No motive is assigned which might induce these youths wilfully to perjure themselves and the depositions give the impression of being the genuine testimony of persons who are trying to relate a true story to the best of their recollection. There is no-reason at all to doubt that the first part of their story is correct, namely that they were sent to bring toddy from a shop in another village by Bara Raju and the prisoner. The toddy seller Jotin confirms that Jerat made this purchase and Parbati chaukidar says he met them on the way and was told their errand. Mr. Manzar for the defence raised a point regarding this conversation of 23rd May, namely why was nothing said of it by Parbati to Samaruddin when they went to the police station on 26th? But it does not appear to have been thought at that time that the incident had any connexion with Noor Mahommad''s disappearance; and Parbati''s silence about it on 26th does not therefore discredit his subsequent statement. We have it from Leta Bibi (P.W.2), mother of the deceased, that on the night of occurrence Chhota Raju called at her house for Noor Muhammad and they went away together. Similar evidence is given by Heytan Bibi, widow of deceased''s brother Bahalim and by Kismat Bewa, sister of Samaruddin. But it is suggested that Samaruddin was unable to tell the Sub-Inspector the name of the person with whom Noor Mahommad had gone out, till 27th May when he made his second report after getting a clue from Mohan Shaikh.

The reports of 26th and 27th May are not on the record of this case, having apparently by some mistake been destroyed: but they are summarised in the judgment of the earlier trial which has been exhibited, and in the interests of accused we have allowed Mr. Manzar to make use of what is there stated. Chhota Raju''s name does not; appear to have been mentioned on 26th May, but there was a reference in the report of that date to music parties and Samaruddin appears to have been at the time of making that report under the impression that deceased had gone to such a party though it is not expressly stated. The evidence of the women is therefore not altogether discredited by the absence of the name of Chhota Raju in the report of 26th May; and I believe they have deposed truthfully.

It is unfortunate that we have not evidence of Mohar Shaikh from whom Samaruddin got the clue which led to his second report on 27th May: Mohar was examined at the trial of Bara Raju in 1932, but his depositions cannot be used, the procedure laid down in Section 512, Criminal P.C., not having been taken: Sheoraj Singh Vs. Emperor . It is regrettable that so often in cases where an accused person is tried and other persons accused are absconding, it is subsequently found that no proper steps have been taken at the time of the former trial to prevent necessary evidence from being lost by death of the witnesses or otherwise.

I do not understand it to be laid down by the Judges in Sheoraj Singh Vs. Emperor nor is it in my view the law that for the purpose of being used u/s 512 the depositions of witnesses must be recorded over again in a separate proceeding. It will suffice if at the commencement of the hearing the prosecutor brings to the notice of the Court the fact that such a person is absconding, examines a witness or witnesses to prove that fact and obtains a direction of the Court that the evidence about to be taken is being taken for the purpose of being used, if necessary, against the absconder u/s 512 as well as against the person present and under trial.

As regards the occurrence, the witnesses Jerat and Waris say that after all the six persons had drunk toddy together, Chhota Raju, Bara Raju and the prisoner attacked Noor Muhammad. At this stage Jerat fled but Waris remained. Jerat heard Noor Muhammad cry out that he was being murdered and Waris actually saw Baharuddin cut Noor Muhammad''s throat. Then he too fled. Baharuddin and Bara. Raju threatened to kill the witnesses it they disclosed what they had seen and on the same night they also promised Jerat Rs. 20 if he kept the matter secret. It is argued that it is unlikely that the murderers would commit the crime in the presence of witnesses and that the probabilities are therefore in favour of Jerat and Waris not being genuine eye-witnesses but persons who profess to have seen matters which did not take place in their presence. The argument from probability though somewhat speculative, deserves consideration; but it must be remembered that the murderers had taken liquor and considerations of caution may well have weighed less with them in that state. Farther they may have counted on the influence of fear to close the mouths of Jerat and Waris more effectively if they saw for themselves what dangerous people Baharuddin and his companions were. The disappearance of Waris from the village for ten days when the inquiry commenced may be an indication that he was so terrorised. On the whole I do not think that the argument from probability discredits the evidence.

As regards the discrepancies, we have been through the entire evidence of these two witnesses, and it has been examined at length in the judgment of the learned Sessions Judge. It is on the whole consistent, and if it is borne in mind that the incidents deposed to took place more than four years ago, it is to be expected that there would be some slight discrepancies on minor points. There is however no serious conflict between the evidence of Jerat and that of Waris nor any material development in the story told by them now as compared with what they gave out at the earlier stages.

In the result the record does not show that the testimony of Jerat and Waris is materially shaken. In a case of this sort, weight must be attached to the appreciation of the evidence by the Court which actually heard it.

It is therefore of importance to note that not only the Sessions Judge but all four assessors accepted the evidence of these witnesses and found the prisoner guilty of the crime I agree with that appreciation of the evidence.

I would affirm the conviction, dismiss the appeal, accept the reference and confirm the sentence of death.

Madan J.

I agree.