Suka Raut and Ant. vs Emperor

Mullick, J.—The appellants, Suka Raut and Jhulan Raut have been sentenced to death for having about 6-30 p. m. on the 15th March last murdered Loka Raut at Mauza Uttar-pratap in the District of Cuttack. Suka is about 30 years of age and Jhulan about 25. As is usual with the inhabitants of Orissa Sukha went in search of work to Calcutta at an early age and came home from time to time on occasional visits. Three or four years ago he married and he has now a child 14 months of age. He last returned from Calcutta one and a half months before the murder. Loka who was 14 years of age was his youngest brother and was a pupil at a day school in Mauza Lahangapata about quarter of a mile south-east of his house. From Suka''s statement it would seem that he was not on good terms with his father Jagu Raut, and that he suspected him of relations with his wife, and that he had been anxious to remove from the family house. On the 14th March, Suka lodged a complaint before the manager of his zemindar (the Raja of Madhupur) alleging that his father was favouring his other brothers and was not making suitable provision for his maintenance. The manager sent a peon to Jagu Raut directing him to appear at his office on the 23rd March. The arrival of the peon on the morning of the 15th led to a quarrel between Suka and his father with the result that Suka was turned out of the house and he and his wife and child took shelter in the house of a neighbour, named Bhikhari Palai, but later owing to the intervention of Banchanidhi Raut, Jagu relented and Suka''s wife and daughter came back to the house in the course of the after noon. The evidence shows that Suka also came back but only for a short time. His father was then away from home and Banchanidhi says that he saw Suka going towards his house about 1 ghari before sun set and told him that the next day he would get his father to pay him his fare to Calcutta which was about Rs. 4. Between that time and 9 p.m., when he confessed to his father and a number of other villagers that ha had killed Loka, we have no information as to Suka''s movements except from his confession.

[Here His Lordship stated the events which led up to this confession].

(Now the case against Suka presented no difficulty. His movements between 1 ghari before sunset and 9 p.m on the 15th March can only be ascertained from his confession before the Committing Magistrate. His account is that, after he went to his father''s house with his wife and child, he waited for some time at the house but was not given anything to eat.

He then went to the Khamar and found Jhulan and his father there. With regard to what followed, I quote his own words: "Jhulan then said ''Do they not give anything to eat?'' I said ''No'' He said ''You had two rupees with you.'' I said ''I have spent a part of that money in filing the application; there is a balance of Rs. 1-3-0.'' Jhulan then said ''wha4; more will you do'' your brother Loka has gone to Chatsai (Pathsala). As there is no money we shall take bracelets and waist chain from him and by that money we shall go to Calcutta.'' He next proceeds to relate how Jhulan''s father Niral also worked upon his feelings and advised him to go the following day to the zemindar''s Kachahri. After this he waited till dusk at the Khamar and saw his brother Loka coming from school whereupon Jhulun said "He is going by that road. Let us go by this way. Catch hold of him." The confession then proceeds as follows: "I went and caught hold of his hand and pulled him in that Bari. There is a Sahara tree there which was in darkness then. He cried; Jhulan put his hand in his mouth and thrusting his hand from the side of his legs carried him to Madhei Sahu''s Bari. I took off his bracelets and waist chain. He took off his Nelis (ear rings) with the help of his nails. As the Fasia did not come out he pulled it. While he was taking off these articles he put a cloth in his mouth and pressed him with his knee. Loka was throwing about his legs. After taking out the Nolu and Faiza Jhulia began to strangle him. He was holding his neck I pulled out his hand and said "He is my brother he will die, I shall not be able to bear it," He said "What do you know-you keep quite, we shall kill him. You are taking the waist chain and Khadu. Your father and mother will let you off. They will arrest me of theft. We shall kill him, I am tying his hand and feet; you go to the goldsmith''s house and come back after selling the Khadu and Suta." He tied his legs with a red napkin and the face with the old one and said "I am now to the Khamar; I was working there; I shall ascertain if there is work for tomorrow. You go to the Bania''s house; I shall come back just now. If I shall see that he is dead then alright, otherwise I shall throw him into the well." I went to the Bania''s house and he to the Khamargarh. When I went towards the road my conscience pricked me (or I felt uneasy) I thought, why should I kill him. I came back and untied the leg and was about to untie the face when Jhulan and his father arrived. I put of if the cloth from the mouth and raised him and made him sit. He sat and Nira Raut said "Why did you make him sit?" Let us kill him." I said no, we shall not kill him" He said "Sala what do you know? I married two wives I killed the first wife. As soon as she died I put some Torani (rice water.) All knew that she died of Maidan (diarrhoea or cholera): who could know that? Did the police catch me-We shall kill him in the same way. Don''t tell this to any one." I was driven out, I fled away keeping my eyes over them at times. I went to a distance and from thence I looked at them. Nira Raut and Jhulan said "Why are you standing on? Go away." I went to Bania''s house. He said "I have no money." Then I went to Banchu Bania and said to him "Will you take the Khadu and Anta Suta," He said "Why not?" I then said "What will you pay for each vari". He said "I shall pay 11 annas for each rari, let the articles remain here till to-morrow morning when you will come and have them weighed and take the price." I then came away from that place and sat in the Gonda''s house. My father went there to call me. With him I came to Khamar. There I confessed everything. Gentlemen say that I stated that I killed him which is not so. I stated "We left him at that place."

There is no foundation for the suggestion that this statement was inspired by the appellant''s father. On the other hand, it is difficult to follow the workings of the appellant''s mind and to explain his conduct, first, before the villagers, then before the Magistrate on the 17th March and then before the Committing Magistrate on the 7th April and finally before the Sessions Judge on the 11th May. There can be no doubt that, as soon as he was taxed by his father and his co-villagers regarding the disappearance of Loka, he made a clean breast of the whole affair. This is proved by Jagu, Dinabandhu, Kalu, Girdhar Narain, Dhruba and Brinda. The reason for this confession at least is clear for he was confronted with Brinda to whom he had just taken the two bracelets and the waist chain and he evidently had not the presence of mind to concoct any plausible explanation. The evidence of Dinabandhu on this point seems to me to be perfectly straightforward and reliable.

[The Judgment then quoted the material portion of the evidence and proceeded]:

While the statement before the Committing Magistrate is obviously innocent in so far as it seeks to reduce Suka''s guilt, there is, in my opinion, no doubt that the above confession made to the villagers was a true and accurate account of the events that happened. From the 17th March Suka was in custody in Jail and between that date and the 7th April he had ample time to prepare carefully considered defence, In my opinion the skill he displayed in the preparation of the statement of the latter date makes it quite impossible to accept the suggestion that Suka is a person of weak intellect and that he was coerced into joining in the robbery under the influence of a stronger mind. As for the statement made before the Sessions Judge about a month later, it clearly bears evidence of both malice and cunning. There is no evidence whatsoever that Jagu Raut, the old man, was carrying on an intrigue with the appellant''s young wife, and as for the suggestion that Jagu Raut killed his own son, who was the youngest child and the favourite of the family, not only is there no evidence but the motive is wholly inadequate. It seems that years before the occurrence there was criminal case about a fence between Jagu Raut and Nira which was compromised and that, shortly before the occurrance, Nira had beaten one of Jagu Raut''s sons in the course (sic) quarrel about a boundary and that the two families were not on good terms, Nira suspecting that Jagu had estranged Jhulan from him. It further appears that Nira and Jagu had not been on speaking terms for three or four years, but, all the same, these disputes and quarrels do not, to my mind, afford a sufficient motive for Jagu''s killing his own son in order to fasten a false charge upon Jhulan: on the contrary, the suggestion is that Jagu was siding with Jhulan against Nira. At the same time, the statement before the Sessions Judge shows that Suka had a very lively appreciation of the situation created by his confessions and that he fully realised the necessity of neutralizing their effect. It is true that in his petition to the Zemindar on the 14th March he said that as he was not more intelligent than his other brothers his father was insulting him in various ways and was unwilling to allow him his proper share or to give him access to the house. This admission of intellectual inferiority is counterbalanced by the assertion that he was earning more money than his brothers, and I can find nothing on the record to show that the appellant is of such weak mental capacity that it would be unsafe to rely upon anything that he has said.

The medical evidence also corroborates the story told by him.

[Here his Lordship discussed the medical evidence and continued.]

There is yet another piece of evidence which corroborates the confessions and that is the delivery of the two bracelets and waist chain to the goldsmith Banchu after the murder. On this point we have the evidence of Brinda and Banchu. It was possibly owing to the confusion following the discovery of the murder that Banchu was not examined that night and apparently the first thought of the villagers was to hurry Suka and Jhulan to the Police Station. It was not till the following day that Banchu produced this jewellery but there can be no reason whatsoever for disbelieving his evidence and that of his brother Brinda as to Suka''s part in the matter. Suka offered the jewellery first to Brinda and finding that Brinda had not the money he went to Banchu who told him he would keep the ornaments and give him the money the next day after ascertaining their weight. The evidence of Ankuri Sahu and Sura establishes the fact that these articles were made by them for Jagu and Jagu''s evidence shows that they were being worn by Loka on the day of the occurrence. There can be no doubt that Suka was speaking the truth when he stated before the villagers and repeated in the Commit ting Magistrate''s Court that he robbed Loka of this jewellery and disposed of it in the manner alleged by Banchu.

A point has been made that the evidence of the witnesses who support the confession in the village cannot be accepted because, if Suka had in fact confessed, an attempt would have been made to search the well that night. The explanation is that nobody was willing at that hour to enter the well. The well was carefully gaurded the whole night and the discovery of the body in it also corroborates the confession. Suka''s statement both before the villagers and in the Committing Magistrate''s Court that he was not present when the body was actually thrown into the well may be true, but probably it is not. One reason for doubting its truth is that the body was weighted with a stone weighing about 20 seers; as the distance from the place where Loka was killed, to the well (according to his own statement) was about 5 yards it would have been difficult though not impossible, for one man to carry the body that distance and to throw it with sufficient care into the well so as not to touch the sides; from the state of the body it would seem that care was taken to see that the head did not strike the brick work inside the well.

I am satisfied therefore, that Suka was one of the persons who caused the injuries from which Loka died and I do not believe his later statement that he made an effort to save Luka.

The only inference that can be drawn from his conduct is, that from the outset his intention was to kill and even if he went away to the Bania''s shop to pawn the things after the assault, he had no intention of averting fatal consequence; either Loka was dead when he went away or he was nearly dead and Suka''s statement to Dinabandhu that Jhulan said "If I find on my return that he is dead all right if not, I will throw him into the well" demonstrates beyond doubt that Suka made no effort to undo what he had done. The probability is that both he and his accomplice threw the body into the well and the absence of signs of drowring shows that life was then extinct.

The learned Counsel for the appellants urges that the motive disclosed is wholly inadequate. Now, the evidence shows that Suka had quarrelled with his father and that he was anxious to leave on the 16th March for Calcutta. He had apparently no money to pay the fare. He had a sum of Rs. 2 out of which he spent 7 annas for the petition to the zemindar and he had the balance in his possession when searched at the Police Station. He required about Rs. 4 for the Railway fare to Calcutta and, in my opinion, his object in killing his brother was robbery. There may possibly have been some idea of revenge against his father also but the principal motive was undoubtedly to get the money. The total price of the jewellery taken is said to be a little over Rs. 25, the golden ornaments, that is, the faeia and the two nolis which are said to have been taken by Jhulan were worth about Rs. 15; Suka''s share, therefore amounted to about Rs. 10 which was ample for the expenses to Calcutta. So small a sum might seem an inadequate motive for fratricide, but murders have been committed even for less adequate motives and the insufficiency in the present case is not in my opinion, a ground for disbelieving the evidence.

I have already declined to accept the plea that Suka was incapable of forming any intention of his own and was completely under the wil and influence of some superior mind and to my mind the crime offers no redeeming features. Suka had been earning his own living, in Calcutta for 15 or 16 years, and there is nothing to suggest that he was not fully capable of realizing the nature of his act. In these circumstances, no sentence other than death will, in my opinion, be proper. His appeal is, therefore, dismissed.

The case against Jhulan is more difficult. We have no information at all of his movements on the day of occurrence except from the statements of Suka and the first question is, whether the confessions of Suka can be received as evidence against him. It is contended that the statement before the Committing Magistrate certainly cannot be admitted inasmuch as Suka exculpates himself and throws the whole blame of the murder upon Jhulan. The law on the subject is contained in Section 30 of the Indian Evidence Act and if Suka''s statement before the Committing Magistrate can be regarded as a confession then it is permissible to take into consideration against his co-accused. The statement is certainly a confession as to the robbery. It is necessary that in order to be capable of being taken into consideration against Jhulan there must also be clear and unequivocal admission of murder? Various authorities have been cited before us to show that, unless a confessing prisoner implicates himself as fully as his co-accused, the statement will not be admissible, the principle being there is no guarantee that the maker of the confession is speaking the truth; and reliance is placed upon Empress v. Ganraj [1878] 2 All. 444 and Empress v. Mulu [1878] 2 All. 646. In my opinion no general rule can be laid down and each case must be decided on its own facts. All that is required is that the confession shall substantially implicate its maker in regard to the crime with which he and his co-accused are charged. It is not necessary that there should be an admission of actual guilt. The admission may establish constructive guilt and the question in the present case is, whether Suka''s statement to the Committing Magistrate, taken with the fact that the body was found in the well, would be sufficient to raise an inference that he and his accomplice had the common intention of killing the deceased and that the act which caused death was done in furtherance of that intention. In my opinion, the answer to this question is in the affirmative and therefore, the statement is admissible in evidence.

But the prosecution are on firmer ground when they urge that, whatever may be said of the statement to the committing Magistrate, the statement to the villagers is certainly a clear and direct admission of guilt and as such it fully complies with the strict rule laid down by Allahabad and the Calcutta High Courts. I have already referred to Dinabandhu''s evidence which proved that the confession was made by Suka as soon as he was confronted with Brinda. Jhulan was not present, but the confession has been legally proved and therefore, it is admissible even though it was made in his absence. In that confession Suka used the words "I have killed him" He also admitted that Jhulan had seized Loka by the legs, that he (Suka) had tied a cloth over his mouth and neck tightly, that after throwing Loka down in that state had gone to the Bania, and that he could not say what happened after. He further said that, after killing Loka he and his companion had left him tied in Madhei Bari and that Jhulan then said: ''Take the silver ornaments to a Bania and sell them. Let the body remain here. As I had been working at the Khamar, I will go and see the Khamar people and ascertain whether there is work for tomorrow. You go to the Bania''s house I shall come back just now. If I shall see that he is dead, then all right, otherwise I shall throw him into the well." There can be no doubt that these statements constitute a full and complete admission of the offence of murder and there is no reason why it should not be taken into consideration against Jhulan. It is true that this confession was partially varied in the Committing Magistrate''s Court and completely retracted in the Sessions Judge''s Court. It is needless to observe that retracted confessions ought to be viewed with the greatest suspicion even as against the maker himself, and in the present case, if there had not been any corroborating evidence against Jhulan, I do not think it would have been safe to convict him; but the corroborating evidence is clear and convincing and, in my opinion, the learned Sessions Judge was right in disagreeing with the assessors as to its value.

[The judgment then discussed the evidence regarding the ornaments found on the body of the deceased and inference suggested by the same, and concluded:]

It is unnecessary to discuss the evidence of the defence witnesses called by Jhulan, They seek to prove that he was working in the Khamar at 6-30 p.m. but their evidence is inconclusive.

The result, therefore, is that, in my opinion, the learned Judge was right in finding that Jhulan took part in the murder and that he had committed an offence u/s 302 Penal Code. There are no extenuating circumstances in the case. The offence was committed in a cruel and callous manner and with a disregard for consequences verging on contempt. In my opinion, death is the only proper penalty in the circumstances and the sentences passed by the learned Sessions Judge upon both appellants will be affirmed.

The appeal of Jhulan is also dismissed.

Bucknill, J.

I agree.