Mosaddi Rai and Others vs Emperor

Macpherson, J.—The Sessions Judge of Muzaffarpur has convicted the seven appellants Mosaddi Rai (not Ahir as in the heading to his judgment), aged fifty-four, Sheogobind Rai aged forty-five, both Rajputs of Imadpur and sometimes designated "Singh," and five Ahirs, namely, Baijnath Raut (25), son of Dharichan Raut of Pakri and Kunkun (25), Hoti (30), Husaini (36) and Ramraj (40) of Bangra on charges u/s 302, I.P.C., and sentenced them to transportation for life. He also convicted u/s 323, but awarded no further sentence. The four assessors found that the charge u/s 302 read with Section 149 was established except in the case of Baijnath whom they considered to be not guilty.

Two other persons were tried with the appellants, namely, Dharichan (45) father of Baijnath and Parao (40), son of Girdhari Raut of Bangra, but they were acquitted by the learned Sessions Judge in agreement with the assessors as regards Dharichan but in disagreement as regards Parao. The persons convicted have preferred the present appeal. When the appeal was opened the Division Bench (Courtney-Terrell, C.J. and Fazl Ali, J.) issued a rule upon the appellants to show cause why the sentence passed upon them should not be enhanced, that is to say, why the capital sentence should not be passed. That is the reason why, though the capital sentence is in question the appeal has been heard on a typed instead of a printed paper-book.

Mr. S. Sinha appeared on behalf of Mosaddi Rai, Mr. S.N. Sahai for Baijnath and Mr. Sahi for the other appellants. Mr. Sinha began by stating that he did not feel justified in contesting the conviction of his client and contented himself with showing cause against enhancement of the sentence. The other advocates have both assailed the convictions and opposed the rule for enhancement of sentence. (After stating the cases of the prosecution and the defence and the findings of the Sessions Judge, the judgment continued). Mr. Sinha accepted the conviction of Mosaddi Rai as correct. But this hardly relieves the Court of the necessity of arriving at its own conclusion upon the evidence against him particularly as Mr. Sahai on behalf of Sheogobind and the four Ahirs of Bangra contends that none of the persons who were at Muzaffarpur were concerned. (After disposing of some of the contentions of counsel on either side, the judgment proceeded).

The learned Sessions Judge has also laid much stress upon the corroboration afforded by the articles stained with human blood which were found on the persons or in the houses of five of the appellants. Mr. Sahai has urged that it is extremely improbable that a person should continue to wear the clothing in which he had committed a murder, and points out that the assailants went to a tank immediately after the occurrence. But it is by no means contrary to experience that the perpetrator of a murder continues to wear blood stained articles.

In the present instance, the probability is that the washing in the Lachhmania tank was hurried and inadequate so that the blood was not completely washed away. Dawn was approaching and the culprits had to make haste from the scene. The assailants had not hesitated to take away some articles from the cart, which like the part and the straw and other contents must have been heavily stained with blood which might well spread to their clothes. I am of opinion that the learned Sessions Judge is right in his view that a dhoti was actually taken from Husaini, a dhoti and two chadars from Baijnath and a dhoti from Hoti which bore stains of human blood. Nor is there any reason to doubt that a gamcha bearing similar stains and a lathi bearing similar stains were recovered from the houses of Sheogobind and Ramraj respectively.

It has been urged that the evidence as to these searches is unreliable inasmuch as the prosecution failed to call the search witnesses, and reliance is placed upon the decision in Munui Sonar v. Emperor (1905) 9 CWN 438. But in that case Section 103(2), Criminal P.C., docs not appear to have been brought to the notice of the learned Judges. Therein it is enacted that search witnesses shall not be called except on the special summons of the Court, so that the police could not direct the search witnesses to attend. Ordinarily the prosecution would not for obvious reasons seek such a special summons. In short the statute lays it upon the prosecution to explain why it desires the search witnesses to be called; and does not lay it upon the prosecution to explain why it does not call the search witnesses. (After discussing evidence regarding each of the accused, the judgment proceeded). It remains to consider the rule for enhancement of sentence in respect of the six appellants whose appeals have been dismissed.

In showing cause on behalf of Mosaddi Rai, Mr. S. Sinha urged first that the view of the Sessions Judge in respect of the punishment should be respected and further argued that on the findings of the Judge in the judgment that the facts had been distorted and a good deal of evidence manufactured, the sentence passed by the Court below should be permitted to stand.

The second argument is manifestly unsound, since as has been laid down in Sohrai Sao and Another Vs. Emperor, :

A Judge should not sentence a person accused of murder to transportation for life, instead of sentencing him to death, merely on the ground that the evidence is not strong enough to justify an irrevocable sentence. If the Court has any doubt as to the guilt of the accused it should acquit him.

Further the point does not here at all arise, since the view of the learned Sessions Judge as to manufacture of additional evidence beyond what he found adequate for conviction, has been found to be, except possibly in a small and immaterial portion which has not been closely examined, unfounded and the evidence impugned is true evidence. Now the learned Sessions Judge was bound to pass sentence of death unless there were substantial reasons for failing to do so as was said in the case cited:

The reason for passing the lesser sentence must be adequate and express.

Prima facie there are also no extenuating circumstances in connexion with a very brutal assassination of witnesses who were about to depose against the perpetrators or their friends and relations, with the object that the evidence in the case against them should vanish with the lives of their victims and in the terror inspired by their deed. The learned Sessions Judge set out as follows:

It is not usual to impose the extreme penalty of the law when men are found to be constructively guilty of murder. It is also impossible to differentiate between the accused persons and it would, I think, be wrong to sentence so many men to death. No doubt a leading part in the occurrence is ascribed to Mosaddi Rai, but my own view is that he was not the originator of the conspiracy, but probably joined in it at the last moment.

The views here expressed are undoubtedly unsound in all respects. Neither principle nor approved practice can be adduced in favour of the view that a capital sentence should not be passed when the offenders are constructively guilty of murder. Indeed the contrary has been emphatically laid down, and many cases are reported in the authorized reports for the guidance of the subordinate Courts.

A case in point is Shafi Khan Vs. Emperor, , which the learned Sessions Judge ought to have followed. In that case Shafi Khan being proceeded against for bad livelihood was wanted by the police for a specific offence and he and others rioted with the common object of resisting his arrest and substantially of killing the police party, and in the course of the riot a constable was killed. The argument was negatived that the persons to be sentenced to death should only be those who could be shown to have taken an active part in causing the death of the deceased, and it was laid down that:

where several persons are convicted of rioting and of murder committed in prosecution of the common object of the rioters, prima facie all the persons so convicted should be sentenced to the extreme penalty. It is only when special circumstances are shown to exist in favour of any individual that the alternative punishment of transportation for life should be substituted for sentence of death.

Moreover, no such practice as is suggested by the learned Sessions Judge exists. Each case or class of case is to be considered on its own facts and what may be admissible upon a conviction u/s 302 read with Section 149 in a village agrarian dispute

where a free and honest fight on equal terms results in death": Sohrai Sao and Another Vs. Emperor, .

would be an enormity in a case of gang assassination. Mere the conspirators carried out their murders by setting upon and cruelly beating to death their two elderly and defenceless victims. If one man had encompassed these murders in like circumstances, the learned Sessions Judge would presumably have awarded the appropriate punishment of death without hesitation. There certainly appears to be no reason why when the heinousness of the crime is aggravated because several persons have conspired together to commit it and have jointly perpetrated it, a less sentence should be passed. To hold otherwise would be to furnish an incentive to an intending murderer to provide himself with associates and to one or two conspirators to constitute as large a combination as possible. The Courts cannot countenance such a result. Next, the sentiment that because it is impossible to differentiate between co-murderers, it is wrong to carry out the law and sentence seven men to death, cannot be too strongly reprobated. On the contrary, a Judge is wrong where he fails to sentence accused persons to death when they have deserved that punishment, and he errs grievously in yielding to such irrelevant considerations.

Judges are sworn to administer the law not as they wish it to be, but as they find it": Sohrai Sao and Another Vs. Emperor, .

Apart from other matters, he is usurping functions which are reserved for other hands or assuming that he is in a better position to exercise those functions than the authority to which they have been entrusted: see ibid. The learned Sessions Judge would have been prepared to pass the capital sentence upon the leader or leaders. In respect of Mosaddi to whom the evidence truly ascribes a leading part in the crime, he refrained from passing the sentence because Mosaddi was in his view not the originator of the plot.

From all that has been said above the only conclusion is that but for the stiffening resulting from the adherence of the Rajputs Mosaddi and Sheogobind, and especially the former, to the conspiracy to assassinate the deceased, the outrage might never have been perpetrated. Whether either or both of these men originated the plot or not, it is patent that when they joined the conspiracy they took it up whole-heartedly and pressed it forward with shrewdness and resolution to the brutal and calculated double murder of two public-spirited citizens, of which they have been convicted. It is impossible to discern any reason for failing to make absolute the rule which has been issued upon them in respect of sentence.

With regard to the Ahirs, they, like Sheogobind, were full of enmity against either or both of the deceased and it did not require persuasion on the part of their leader Girdhari or anybody else to induce them to join in the attack. Mr. Sahai has been unable to bring forward any reason why the capital sentence should not be passed upon them. Indeed having regard to their character and antecedents undue leniency could not but be misconstrued into an invitation to similar deeds.

It is indisputable that the lesser penalty of transportation for life has now quite ceased to be deterrent even among better controlled men than these diara Ahirs. In my opinion there is no alternative but to make the rule absolute in respect of them also.

The appeal of Baijnath is allowed, his conviction and sentence are set aside and he will be forthwith released.

The appeal of the other appellants is dismissed, the rule for enhancement of sentence is made absolute and it is directed that Mosaddi Rai, Sheogobind Rai, Kunkun Raut, Hoti Raut, Husaini Raut and Ramraj Raut be each hanged by the neck till he is dead.

James, J.

I agree.