Khudu Rajak vs Emperor

Courtney-Terrell, C.J.—This is an appeal from a desision of the Sessions Judge of Manbhum-Sambalpur convicting the appellant Khudu Rajak of the murder of his wife Puti Rajakin on the 21st April last. He was sentenced to transportation for life and by direction of the Court notice was served upon him to show cause why the sentence should not be changed to one of death.

The accused is of the dhobi caste and is a resident of village Kana situated two milea from the Thana of Balarampur. He is aged about 27 years. His father died some four years ago and since then he has been master of his own assets and affairs. He is fairly well off and has a pucca house. His deceased wife Puti Rajakin was the daughter of one Panu Rajak of a village called Nekra in the same district about two miles from village Kana. At the date of her death she was about 17 years old. She married the appellant at about 8 or 9 years of age and went at once to her husband''s house. She attained puberty four or five years ago. The life of the married couple was not happy. The appellant used to beat his wife and on at least one occasion she ran away to her father''s house and complained to him of the treatment she received. She also complained to her, grandmother, the mother of her father. Her own mother is dead and her father has married again. She complained to them that the appellant had beaten and ill-treated her and shewed the marks on her body and she told her grandmother that the treatment by her husband was due to the fact that he had entered into an intrigue with another woman named Nuni Baisnabi. This person is of about the same age as the appellant. She is separated from her husband and carries on a small grocer''s shop at Kana where she lives with her mother. There is evidence that the appellant used to spend much of his time with this woman.

The house of the appellant is a single storied building with a not pucca roof. It has a verandah facing south, and north of this verandah there are three rooms each with a door leading on to the verandah, la the westernmost room cows are kept. This room has a door in its western wall by which access is obtained to a stair-case of two flights leading to the roof. The upper end of the stair-case is surrounded by walls standing up from the main roof and the enclosed space is covered to protect the Btairs. The southernmost enclosing wall has a door in it by which a person passing from the staircase may come out on to the roof. The roof of the house has a small parapet a few inches high on the north side. Adjacent to the house and south of the verandah is a court-yard which is shared by the appellant with his uncle Nay an Rajak whose house lies on the east and southeast of the appellant''s house.

On the night of the 21st May there were in the house of the appellant only four persons, the appellant himself, his wife, Who died that night, the appellant''s mother and a boy of about 13 or 14 named Hiru Rajak. He is a distant cousin of the appellant and about four and five days before had been engaged by the appellant as his cowherd.

At 8-30 A.M. there appeared at the Balarampur thana the uncle of the appellant, Nayan Rajak, accompanied by some villagers. He lodged a First Information, which was recorded by the writer Head Constable, the Sub-Inspector being absent that morning on other business, He stated that early that morning Khudu had called to him to come up to the roof and Bee his wife who was lying dead having committed suicide by cutting her throat with a sword; that he had gone up to the roof and found Khudu there, and on the middle of three khatias, which were lying side by side east and west with their heads close to the eastern wall surrounding the stair-case exit, he saw the body of Khudu''s wife. Her throat was cut, there was much blood about and a bloodstained sword was lying on the ground close to the khatia. He said that the other cots had been occupied, that on the north by the boy Hiru and that on the south by Khudu. He said that the sword belonged to Khudu, and that it together with a bow and arrows had been kept on the roof. He said that Khudu''s mother slept in the court-yard down-stairs. He further said that Khudu was Weeping and that when he had been asked by Nayan and fellow villagers, who had been called to the scene, to come to the Police Station to information Khudu had said; "Proceed, am coming" and had set out before them. They had not, however, found him on the way.

The Head Constable went to the spot at 10-3-0 A.M. and held an inquest on the body and subsequently sent it to the hospital for a post mortem report. He found and took charge of the sword and its sheath and also found a bow and arrows close by. The deceased was lying on her right side and had two gaping wounds on the left side of the neck severing the spinal cord. They must have been inflicted with great force by a heavy sharp weapon and there can be no doubt that they were inflicted with the sword which was found.

Nayan Rajak gave his evidence before the Sessions Judge and a particularly foolish cross-examination by Babu Ohandi Oharan Chatterji, who appeared for the defence, established beyond doubt that the sword was Khudhu''s property. The witness, however, somewhat altered the story that he had given in the First Information and this alteration is undoubtedly due to his desire to shield his nephew. He stated that the appellant had said that" some one had cut the woman''s neck" and when reminded by the Court that he had stated in the First Information that Khudu''s mother slept that night in the court-yard he replied "I did not see her sleeping there I said so but it was a mistake. I only saw the khatia."

He, however, admitted that he himself had slept in his own angan and from there he admitted that the court-yard was visible. It is very clear not only that Khudu''s mother had in fact slept in the court-yard down stairs as stated in the First Information but that Nayan had actually seen her sleeping there. The mother Sukhada Raj akin and the boy Hiru have both given evidence. The mother says that she and Hiru and the deceased woman were the persons who slept on the roof. She says that Khudu went out after the evening meal and that she does not know when he returned home. She says that the door-way leading from the bottom of the stair-case into the cow-room had been bolted and that no one can have got on to the roof by means of the stair-case. She says that she had slept soundly through the night and when she had waked up she had found her daughter-in-law lying dead covered with blood and the sword on the ground and that she had then gone down the staris and opened the door and found her son sleeping on the verandah. This is a very natural and very pitiful effort to shield her son and to my mind the story is entirely incredible. It will be remembered that three khatias were found on the roof by Nayan when he went up there. The northern-most one bore no blood-stains. On the middle one Puti was lying but the southernmost one was conspicuously blood-stained. It is to my mind certain that the husband and the wife both slept on the roof as stated by Nayan in the First Information. Whether or not the boy slept on the roof is not certain but he is of an age when such a proceeding would seem very unlikely. The probability is that the third and northernmost khatia was placed upon the roof after the murder had been committed and it was probably placed there by the appellant assisted by his mother. It is true that in the First Information Nayan says that the boy slept on the roof but he was not called to the scene until after the third cot was in position and I think it likely that at that time it had not been decided between Khudu and his mother to say that she (the mother) had slept on the roof. It is quite incredible that the mother could have slept on the roof or that she was the first to discover the crime for in that case. Nayan would have been told of this fact the moment he appeared on the cene and neither in the First Information nor in his evidence in Court does he make any mention of having been told that it was the mother who had first discovered the dead body. Moreover, had she been the first to discover the murder she would undoubtedly have raised an outcry. Indeed Rai Bahadur Jyotirmoy Chatterji who presented the case for the appellant with the greatest skill and energy, was constrained to admit that the story of the mother having slept on the roof was too incredible to have any chance of success. He, however, body advanced a very ingenious hypothesis to account for the death of the deceased. He admitted that the situation and structure of the buildings rendered it almost impossible that the murderer can have approached the roof otherwise than by the stairs and he offered the theory that the woman Nuni Baisnabi, who was the appellant''s mistress, instigated the murder. He suggested that she may have previously arranged with some other person that on the night of the 21st May, she should lure the appellant to an assignation at her, own house and that in his absence and while the door to the staircase was left unguarded the assassin should come to the house and murder the wife who might be expected at that time to be asleep. It being pointed out to the learned Advocate that in that case a murderer would probably bring his own weapon he quickly and ingeniously replied that such a murderer if he found the sword which was admittedly on the roof would prefer to use such a convenient weapon and leave it behind him to divert suspicion. He admitted that this hypothesis was supported by no evidence whatsoever but urged that it was consistent with the facts and ought to be treated as a possibility. Ingenious however as the theory is, it must, in my opinion, fail as an explanation. In the first place, it is extremely improbable that a woman in the position of Nuni Baisnabi can have possessed the means to purchase the services of such an assassin. Secondly, the risk to be run by the assess in was such as would deter any sane man from the attempt. Thirdly, there was no financial inducement in the actual commission of the crime for no robbery was committed. Fourthly, it is quite impossible that Nuni Baisnabi could have induced a lover to undertake such an enterprise for the benefit of a rival lover. Lastly, if Nuni Baisnabi had been the instigator of the murderer the appellant is the one person who would have been selected by her as the assassin.

As against the appellant there is first of all the evidence of motive. He had relations with a mistress and it was on account of this relationship that he quarrelled with his wife and beat her. This fact was amply established by another piece of foolish cross-examination by Babu Ohandi Charan Chatterji. Secondly, the blood-stained weapon with which the murder must undoubtedly have been committed was the property of the appellant. Thirdly, we have the conduct of the appellant himself. He was afraid to go to the thana with his uncle. The murder must have been committed by man and he was the only man in the house. The murder clearly could not have been committed by a chance robber for he would have had no motive for attacking this one woman out of two or three sleeping persons. To my mind the evidence establishes beyond all reasonable doubt the guilt of the appellant and the learned Judge quite rightly convicted him.

I pass now to a consideration of the sentence which has been passed upon the appellant. The learned Sessions Judge said:

I find the accused guilty and convict him u/s 302 of the Indian Penal Code. As, however, no adequate motive for the crime has been made out, I would not be justified in imposing on him the extreme penalty of the law.

In this matter the learned Judge has made a very grave mistake. It has long been well-established law that unless extenuating circumstances can be found a murderer must be sentenced to death. It is a most painful duty which we are obliged to perform but it is our duty to insist that the Sessions Courts shall carry out the obligations imposed upon them by law. The question whether or not the death sentence is imposed should not depend upon the particular Judge who happens to try the case and in the interests of accused persons it is right that they should be able to expect the same results, no matter by what Judge they happen to be tried. I have been at pains to point this out in an earlier case Sohrai Sao v. Emperor 124 Ind. Cas. 336 : 11 P.L.T. 148. That also was a case in which the Court was obliged to enhance the sentence of transportation for life to one of death. In that case 124 Ind. Cas. 336 : 11 P.L.T. 148 decided on the 8th June 1929 I said: "The reason for passing the lesser sentence must be express and adequate. Such reasons are sometimes to be found in the order �f mentality to which the person belongs. A simple-minded ignorant savage, who slaughters a person whom he really believes to be a dangerous magician, may well fall into this class.'' In this province, moreover the position of women, deprived of contact with the world, of education and of all opportunity for mental development would, save in very extreme cases, justify a Court in treating them as persons who should not be sentenced to death. Sometimes also an extenuating fact may be found in the circumstances of the crime itself, Bach, for example, as those which often occur in agrarian riots where a frea and honest fight on equal terms results in death although the crime may nevertheless not fall within the exceptions to Section 300 of the Indian Code. I must observe that a feeling of doubt as to the guilt of the accused is a matter to be considered by the tribunal before but not after the verdict. It has no place in the determination of the sentence after ''conviction. If the evidence is not strong enough to justify an irrevocable sentence the accused is entitled to acquittal, and our law does not recognise the right of a judicial tribunal to give effect to more than one decree of doubt., It is not permissible for a Judge to sentence a prisoner to transportation for life on the ground that he is sufficiently certain of the guilt for that purpose but not sufficiently certain to sentence him to death. I mention this matter because it may throw light on some of the reported decisions which are otherwise inexplicable on judicial grounds. Finally it must be noted that those in whose hands is placed the exercise of the Royal Prerogative of mercy are not trammelled by any legal considerations whatever and may be trusted to exercise their powers. The Legislature has wisely not thought fit-to entrust judicial tribunals with the prerogative of mercy and Judges must remember that they are sworn to administer the law not as they wish it might be but as they find it. The case we are dealing with is one of brutal assassination of a sleeping and defenceless woman and 1 can see no reason why the murderers should not suffer the extreme penalty".

In this particular case the reasoning of the learned Judge for not passing the sentence of death means either that he is not certain of the guilt of the appellant or that a person who murders his wife without reason is less blameworthy than one who does so in order to get rid of her in favour "of a mistress. I have no desire whatever to make any observation which might be taken as a reflection upon the mental integrity of so experienced a Judge, The statement of his reason merely exhibits a confusion of mind. For the reasons I have stated I would dismiss this appeal, set aside the sentence of transportation for life and sentence the appellant Khudu Rajakto be hanged by the neck till he is dead.

Macpherson, J.

I agree.