Emperor vs Itwa Munda

Courtney-Terrell, C.J.—This is a reference u/s 374, Criminal P.C. together with the appeal of Etwa Munda who has been convicted of murder by the Judicial Commissioner of Ranchi and sentenced to death. The events which led up to the death of the victim, a woman named Karmi Urain, are very clear and, in my opinion, this appeal can be decided on the facts without any difficulty.

Karmi was a widow and lived with her son Dhuma in a village called Satranji within the thana of Ranchi. On a Sunday, 23rd May, the woman left home telling her son that she was going to visit her cousin in a village about three miles south of Satranji. She went off and did not return and after a few days her son became anxious and informed the village chaukidar, and the matter was reported to the Ranchi police.

During the course of the days immediately following her disappearance the body was found at a place called Deuri which is some 17 or 18 miles to the southward of village Satranji, the place being approachable by a road which runs southward from village Satranji passing through a village called Lodma and later on the thana head quarters at Karra. The body was found partially devoured by vultures, the fleshy portions being mostly removed. The frontal bone of the skull had disappeared, and on the right parietal bone was an extensive depressed fracture which could only have been caused by violence; and the disappearance of the frontal bone leads to the conclusion that that also had received severe injuries and had been broken,, otherwise it would not have been possible for the vultures to remove the frontal bone from the parietal bone forming as it does a strut or an arch between the two.

The police of Karra were soon upon the scene and they found that it was the body of a woman, an inference from the long hair which was lying about near the body, and they found stones, some of them large and some of them small, bearing blood stains. The sari of the deceased was lying at a little distance from the body and a little further off still there � as lying a jacket. These garments have been identified as belonging to Karmi, and indeed the identification of the dead body as that of Karmi has been proved beyond any reasonable doubt.

The Sub-Inspector enquired at Ranchi police-station and learnt of the disappearance of Karmi from her residence at Satranji. He therefore went back to Karra and had an interview with the son of the deceased, and as a result of the information which had come to the Sub-Inspector''s hand he arrested appellant Etwa Munda on 5th June at his house in village Satranji. He took possession of the dhoti which Etwa was wearing and which has been shown to bear very extensive stains of human blood. He searched the house, and he found a shirt which bore blood stains but owing to their disintegration it has not been possible to say whether the blood was human blood. He also found a black coat which bore stains of human blood on it.

On the following day he arrested an individual named Sohrai who was a Christian and found certain suspicious circumstances in the matter of stained garments also in his possession, and he made a charge against Etwa and Sohrai of having committed the murder of Karmi. The committing Magistrate discharged Sohrai, holding that there was no reliable evidence to convict him of the crime, and Etwa alone was committed for trial before the Judicial Commissioner.

The witnesses have proved with no doubt the visit of Karmi to the village Ghutia. They have shown that she left that place and went to the intermediate village of Lodma, and she has been traced thence to Karra and witnesses at the latter place and in the neighbourhood saw her in company with Etwa, the appellant, and another man presumably Sohrai. One of the witnesses actually carried on a conversation with Etwa and asked him where he was going. The reply was that he was going a long way, and at that time two young girls were passing, one of whom was a relative of the witness. The witness made some jocular remark with the obvious intention of indicating that the two men were going off for the purpose of intercourse with the woman. There has been some evidence that Karmi did not pursue an entirely moral course of life and that she had some relations with Etwa. Naturally those circumstances cannot be proved beyond doubt. An elderly person of village Satranji has stated his impression that there were immoral relations between the two.

On the other hand there have been witnesses who have said that from what they had heard of Karmi''s conduct no such relation existed. Be that as it may, the journey of the woman in company with the two men was very obviously for the particular purpose that they might have relations with her.

Now the other piece of evidence which is the most important evidence in the case is the statement by Etwa which was recorded by a Magistrate. There was some attempt by Etwa both before the committing Magistrate and before the Judicial Commissioner to deny the fact that he made the statement, but the fact that he did make the statement and that it was correctly recorded is proved beyond any shadow of doubt. The statement of Etwa is as follows:

On Sunday Karmi said to me, "Sohrai''s wife quarrels with me. Hence Sohrai will escort me." I said that I shall go to (my) father-in-law''s house on Monday. I reached Lodma Bazar on Monday. I saw Sohrai going from the liquor house with liquor towards Karmi, when the woman called may Sohrai brought three bottles of wine. Then (they) proceeded with me. There then is a well in Bingaon on the same side. (We) drank (wine) at that place. Then Sohrai said ''(she) is a corrupt woman. Hence she has called you and has also called me.'' I said that I was going to (my) father-in-law''s house. There is garden on (the bank of) the river Malgo. I met a constable at that place. He was going towards Lodma. From that place he came to Karra. At Karra, Sohrai asked me to bring a bottle of (wine). The woman gave one anna to Sohrai. Sohrai gave it to me. Then I went to the liquor-house for wine. Then taking the wine I crossed via Karra. At Karra two little girls had seen us. One male was coming, who enquired as to where we were going. We told him that we were going a long distance. Then the male said to the girls that they too would go in the same manner when married as we were going. Then we crossed (the river) and after having crossed we drank wine at the hillock which is near a garden. Then Sohrai said, ''she is a corrupt woman. Why has she called two males? I shall kill her.'' I said, ''Why will you kill her?'' We got up and went away from that place. Then we reached the dhodha (streamlet). We drank water there. Sohrai gave me tobacco. He said that he too had washed (his face). The woman too washed her face and drank water. Sohrai also went to drink water. He asked me to prepare tobacco soon. Then I gave him tobacco. After giving him the tobacco, I sat apart. Then Sohrai made the woman take off her Ghandwa (necklace) and jacket. Then after that, the woman, having come, was sitting facing towards the west. Sohrai struck the woman on her head thrice with a stone. I was running away, when he told me, ''Sala (brother-in-law), if you will not assault her, I shall set you right''. Then I, out of fear, turned back and struck the woman twice with a stone. After that we were returning towards (our) house. Hearing some one coughing in the river, I fell down. After that I came home running the whole night. Sohrai also fled away to his house. On the way I met the chaukidar of my village. He enquired as to from what place I was coming. I replied that I was going to my father-in-law''s house, but I did not go there and that I had come back.

Some discussion has turned upon the question as to whether in the absence of other evidence the whole of a given confession must be accepted as a statement of truth in its entirety. I find no justification for such a suggested rule of law. It is true that if an accused person makes a confession, the whole of that confession must be placed before the Court and is receivable in evidence. But there is no rule of law which compels belief in the statement of a witness. I think the confusion has arisen partly because there are many instances in law where an occurrence has to be proved and there is legal provision that it may be proved by the evidence of such and such a class of witness and that if the prescribed class of witness makes the statement, then that statement is receivable in evidence and the inference of fact may justly be inferred from that statement alone. But to hold that the statement when made is necessarily to be believed in every part is entirely erroneous. In the first place, the statement made may contain statements which are unbelievable in their very nature, and it is obvious that to hold that the Court was bound to assume the unbelievable statements would be in such conflict with reason that it cannot be supported. The Court if it comes to the conclusion that the statement in its essential particulars is true is entirely entitled to disregard the statements which it may hold in the circumstances are not true.

Now we find that the considered statement which has been made in this case contains the statement that the other man who may or may not have been Sohrai, and the appellant were both present at the time when the deceased met her death. There is also the statement that she received her injuries by blows with stones, which fact is corroborated by the condition of the remains and the fact that bloodstained stones were found in immediate proximity to the body. There is the statement that three of the blows were inflicted by the man other than the accused and that two of the blows were inflicted by the accused himself.

Therefore the accused was present at the commission of the offence of striking the woman with stones and he himself participated in that offence and himself struck her with stones and as the result of the striking with stones the woman died. It is not possible to make any inference as to which of the particular blows, or which particular assailant, inflicted a fatal injury. An attempt has been made to argue on behalf of the appellant that inasmuch as Sohrai is spoken of as first attacking the woman and striking her on the head and inasmuch as the blows on the head would have produced immediate death and inasmuch as Etwa inflicted his blows after Sohrai had inflicted his, the proper inference is that Etwa inflicted blows on a dead body (which would not amount to murder), and an attempt was made to ask us to recall the doctor with a view to showing that the woman must have expired immediately after the occasion when she received the blow inflicted which broke her skull and that the subsequent blows if inflicted by Etwa could not have been inflicted on a living body. The argument is entirely fallacious, and the request could not be entertained, for it may be assumed that out of the wounds which she did receive as a result of the blows by the two assailants some or more of them must have proved fatal but as to which of the inflicted blows inflicted the particular fatal injury there is no evidence at all and it is just as likely that the blows inflicted by Sohrai, the first assailant, did not produce anything but superficial wounds, whereas the blows inflicted by Etwa fractured the woman''s skull and killed her.

It is commonly found in cases where two or more persons unite together and strike a series of blows with dangerous weapons on the body of the deceased, that it is impossible to identify any one of the wounds with any one of the assailants and nevertheless if the deceased dies as a result of the injuries received, each of the assailants is guilty of the offence of murder.

The narrative of Etwa contains the further assertion that Sohrai announced that he desired to kill the deceased, and by way of preparation induced the woman to remove her jacket. The fact that she removed her jacket is amply demonstrated for the jacket lay some distance from the body and bore no blood stains, and that then Sohrai in pursuance of his announced intention struck the woman three times on the head with stones; and according to Etwa''s account, on seeing this he began to run away but was quickly recalled by Sohrai with the vague threat that if he did not also strike the woman, he (Sohrai) would "set him right". That was quite enough to change the intention of Etwa if indeed he ever intended to depart from the scene and have no further participation in the offence. As he says himself he came back and struck the deceased on the head twice with stones, and that he was in the immediate neighbourhood of the deceased and did not throw any stone from a distance is shown by the fact of the very liberal display of blood on Etwa''s garments which could only have taken place if Etwa had been within a few inches of the dying woman. To my mind the confession is a complete confession of murder. The woman died from blows of stones. Two persons Sohrai and Etwa inflicted the blows. It is not possible to state which of the blows was a fatal blow. Circumstances of this kind are extremely common, and I have never heard any doubt expressed that all of the assailants in such circumstances are guilty of the offence of murder.

A long discussion took place as to the particular applicability of Section 34 and Section 37, I.P.C., and to my mind there is very little utility in this discussion. One of the points of controversy was as to whether the persons each of whom intended to strike the deceased, had the intention at the moment when she received her fatal blow to kill her. To my mind that is an irrelevant discussion. We have a case here of a woman who had died by the infliction of blows with stones; the self-confessed fact that Etwa was present and was one of those who struck her with stones and this and no more is needed for the conviction of Etwa of the offence of murder.

With regard to the sentence, on Etwa''s own confession, we have the fact that he inflicted these blows with stones when she was already lying on the ground suffering from three severe wounds inflicted by the other man. A more cowardly and brutal assault cannot be imagined. The woman had no opportunity of defending herself. She was a woman. It is very clear indeed that these two men having had their pleasure of the woman became suddenly disgusted with her and killed her. The very notion of Etwa merely yielding to the threats of Sohrai and therefore having some excuse on that account is ridiculous, and I would reject such an attempted mitigation of the circumstances. In my opinion the learned Judicial Commissioner was entirely right in stating that there: was no extenuation for the crime and that Etwa was properly sentenced to death.

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

Dhavle, J.

I agree. The learned Judicial Commissioner applied Section 34, I.P.C., in determining the liability of the appellant, and this is what gave rise to the discussion as regards that section and Section 37 of the Code, as the confession on which alone this part of the prosecution case rests shows that Etwa did not share Sohrai''s murderous intention when the latter began the assault upon Karmi. It seems to me that, even on the confession as it stands, the appellant is guilty of murder. We cannot on that confession reasonably assume in Etwa''s favour either that the woman was dead before he assaulted her or that her death was caused by Sohrai''s assault alone, though the body was found in such a condition as to make it impossible to trace the effects of the assault by the two men separately. The distinction between Sections 34 and 37 is that while the former requires a common intention for a criminal act done by several persons, (i.e. "a unity of criminal behaviour which results in a criminal offence"), in which case each actor becomes liable as if that act were done by him alone, Section 37 deals with intentional co-operation (which, it was pointed out by Lord Sumner in Barendra Kumar v. Emperor , may not be the same as a common intention) in an offence committed by means of several acts, and punishes such co-operation (provided it consists in doing any one of those acts either singly or jointly with any other person) as if it constituted the offence itself. Now, if, as Lord Sumner says, intentional co-operation may not be the same as a common intention, it must, in my opinion, include action which contributes to the offence and is done with the consciousness that the offence is on foot, though without sharing the intention to commit that offence. In considering, on the confession as it stands, whether Etwa intentionally co-operated in the murder, we have to bear it in mind that he hit Karmi twice with a stone when required by Sohrai to assault her and that Sohari had already declared his intention of killing her and had actually hit her three times on the head with a stone. It is true that proceeding on the confession alone Etwa must be dealt with on the footing that he was opposed to the idea of killing her and that he only assaulted her reluctantly when threatened by Sohrai. But Section 94 is clear that the threat does not affect his liability, and his assault was not only intentional (as distinguished from, say, accidental) but also voluntary within the meaning of Section 39: see Killikyatara Bomma v. Emperor (1913) 19 I.C. 207. The assault was not only intentional but was also (on the confession itself) committed knowingly as part of Sohrai''s project to murder the woman, and it did contribute to her murder. If therefore Section 34 did not apply to the case, Section 37 would, in my opinion, undoubtedly do so.

Chatterji, J.

I agree, though with some hesitation, that the accused Etwa took part in the murder. It is not that I am not convinced of his complicity in the crime, but I feel that his confession does not give out the whole truth. I believe the confession where he gives an account of how he met his associate Sohrai and the deceased woman at the Lodma market and how they all together proceeded on a journey from that market and on the way passed through Karra and ultimately happened to go to the place of occurrence. I also believe the confession where Etwa admits that he was present at the time of the occurrence and took part in the assault and this is indeed the most essential part of the confession. But what I do not believe are those statements which are meant to exclude Etwa''s intention to kill the woman. I do not believe the statement that when the three were at the hillock near a garden where they drank wine Sohrai declared his intention to kill the woman, and Etwa then protested saying "why will you kill her?" This statement does not seem to be consistent with the narrative given in the confession. All the three were drinking wine and if Sohrai really said he would kill the woman and Etwa protested, their conversation could not have escaped her attention and at any rate Etwa should have warned her and she would have at once run away.

I also do not believe the confession where it states that Sohrai asked the woman to take off her jacket and when she did so he at once began the murderous assault. I fail to understand why he would ask her to take off the jacket when he was going to murder her. The fact remains that not only the jacket but also the sari were found not on the corpse but at some distance from it without any blood stains. This shows that at the time when the murderous assault was committed upon the woman, she had neither the sari nor the jacket on her person. To my mind what appears to have taken place is that both Sohrai and Etwa wanted to have immoral connexion with the unfortunate woman who was accordingly made to take off her clothes and probably after one of them had the pleasure the other, being for some reason or other dissatisfied with her, began the assault in which the former also took part.

I at first felt some difficulty on the question whether I should be justified in rejecting a part of the confession where it does not seem to be credible and accepting the other part although in a Full Bench decision of the Allahabad High Court in Balmakund Vs. Emperor, it was laid down that a confession must be accepted or rejected as a whole unless there is evidence to prove affirmatively that any statement in that confession is false even though it may be inherently incredible. Speaking for myself I was not inclined to endorse that view of the law, but as it was a Full Bench decision of five Judges of the Allahabad High Court I felt some doubt in the matter. However on a further consideration it seems to me unreasonable to hold that if I do not feel inclined to believe every part of the confession, I would still be compelled to accept it as a whole. In this respect I am supported by the view just expressed fey my Lord the Chief Justice. I may also refer to the decision in Pullin Tanti v. Emperor (1913) 40 Cal. 873.

Considering the essential part of the confession taken along with the circumstantial evidence afforded by the fact that the jacket and the sari and also some bloodstained stones were found lying in close proximity to the dead body and by the fact that there were blood stains, not accounted for, on the dhoti which Etwa Was wearing when he was arrested and also on his coat which was seized from his house, the only reasonable conclusion that I can draw is that the woman was murdered and Etwa was present at the murder and took part in it.

In this view of the case I do not think the question whether Section 34 or Section 37 applies at all arises. If however, I were to be confined to the confession itself as a whole and were bound to accept every word of it, then I would have felt some difficulty in holding Etwa guilty of murder by applying Section 34 or Section 37, I.P.C., because in my opinion upon the confession as it stands Section 34 does not apply, and as regards Section 37 I have still some doubt.

But, as I have said, I am free to accept that portion of the confession which appears to me to be credible and is supported by circumstantial evidence, and this in my opinion is sufficient to establish the guilt of the accused.