1. In this case Gaya Prasad Brahmin, Chadammi Lal Mallah, Raja Ram Brahmin and Nannha Bhat were tried before the Sessions Judge of Cawnpore on a charge under Section 302, Indian Penal Code, in respect of the murder of a woman named Musammat Janki Koer and a boy eleven or twelve years of age named Durga. They have been found guilty and sentenced to death. The Sessions Judge has also, under Section 62, Indian Penal Code, passed an order of forfeiture in respect of all the property of the accused Chadammi Lal. The record is before us for confirmation of the sentences of death and the four accused have all appealed. The case has been fully and ably argued on their behalf. The evidence on the record is voluminous and the learned Sessions Judge has written a careful and elaborate judgment. In dealing with the matter, we may consider first of all the antecedent circumstances of the parties concerned and the evidence of motive. Musammat Janki Koer married successively two brothers named Kesho and Manna, who were the sons of one Umrai. This Umrai was the son of one Subba Lal, and the accused Chadammi Lal is a great-grandson of the aforesaid Subba Lal. The evidence on the record shows that Kesho and Manna were co-sharers in a certain landed property and also that, in consequence of certain successful litigation, a sum of Rs. 7,000 payable to Kesho and Manna in equal shares was realized and deposited in the Court of the Subordinate Judge of Cawnpore. From the time of Kesho's death there was ill-feeling and litigation between his widow, Musammat Janki Koer, and the other branch of the family, which were represented, in the first instance, by one Lachman, another great-grandson of Subba Lal by a different line. Since the death of this Lachman the accused Chadammi Lal has acted as the head of this branch of the family. The result so far may be summed up as follows: Kesho's share in the zamindari property seemed to have been lost to Musammat Janki Koer altogether. Manna's share was in the possession of Chadammi Lal, although Manna's name continued to be recorded as proprietor. Of the money deposited in Court, however, Musammat Janki Koer succeeded in securing half, Rs. 3,500, as representing the share of her first husband, Kesho. Lachman seems to have made an attempt, several years ago, to secure the other half by getting himself appointed guardian of the person and property of Manna, who was then a little under eighteen years of age. This attempt was defeated by Manna's appearance in Court, but shortly after this, and before he could himself take steps to secure the money, Manna disappeared. The witness Pukhai, who is Musammat Janki Koer's Uncle and whose evidence contains most of the facts regarding the previous history of the family, seems convinced that Manna was in fact murdered by, or at the instigation of, Lachman or Chadammi Lal. At any rate Musammat Janki Koer's attempt to recover the remaining Rs. 3,500 was defeated by an order of the Court that the money would continue in deposit until Manna's death could be proved, or could legally be presumed by reason of his unexplained absence for a period of seven years. This period was drawing to a close at the end of the calendar year 1913. The evidence of Pukhai shows that towards the close of the year advances were made to Musammat Janki Koer on behalf of the accused Chadammi Lal. The accused Gaya Prasad, who is the Patwari of the village of Karhwa in which some of the family property is situated, came forward in the matter apparently as a friend of both parties. We think there is good evidence that this man was trusted by Musammat Janki Koer and had been of service to her in defeating a previous attempt to get Manna's name removed from the village papers. The position, therefore, was that, as soon as Manna's death could legally be presumed, Musammat Janki Koer might be expected to move in the matter of recovering the Rs. 3,500 lying in deposit, in Court, and Chadammi Lal might be expected to move in the matter of getting Manna's name removed from the village papers and his own possession formally recognised. There was, therefore, clear ground for discussion and compromise; and at the same time it is idle for the defence to contend that Chadammi Lal had not a strong motive for putting Musammat Janki Koer out of his way. As regards the accused Gaya Prasad, the case for the prosecution is that he had been won over by a gift of land by Chadammi Lal. He has offered an explanation of this matter in his defence but we are not prepared to say that we find it proved. The other two accused, Raja Ram and Nannha, are merely the servants of Chadammi Lal's.
2. We may now pass on to another portion of the evidence and consider this point first, namely what has now become of Janki Koer and of the little boy Durga. The evidence, of Musammats Dulli and Makho, Chandrika Prasad and Jai Lal, corroborated in certain particulars by Pukhai, is to the effect that on a date which on an examination of the evidence as a whole can be fixed as being September 8th 1913, Musammat Janki Koer left the house in Cawnpore where she was residing; and started ostensibly for Karhwa, where her zamindari was situated. According to this evidence, the accused Chadammi Lal and Gaya Prasad came to fetch her and took her away with them. She insisted on being accompanied by the boy Durga who was a sort of nephew and protege of hers, and she also took with her, apparently on a sudden impulse, the witness Musammat Dulli, who is a distant cousin of hers and who had come to pay her a visit. According to Musammat Dulli the whole party travelled by rail to a station called Maitha, where Chadammi Lal temporarily separated himself from the others. Certain Kahars afterwards arrived with a doli for Musammat Janki Koer and the party proceeded by road to the village Karhwa. Misri, a Kahar who helped to carry the doli, gives evidence on this point. It is, as the learned Sessions Judge remarks, in his favour that he admitted that he did not see Chadammi Lal with the rest of the party. On reaching Karhwa the woman put up for a couple of days at Gaya Prasad's house, but subsequently moved into a dera or the zemindar's house belonging to the family in that Village. There, according to her evidence, Musammat Dulli left them on the night of Wednesday, September 10th, and returned to Cawnpore. There are two Kahars, Majnu and Baladin, who supplied Musammat Janki Koer with water during her residence at the dera and their evidence corroborates the fact of her presence there up to and including Thursday, September 18th, 1913. The next important witness is Musammat Chitia, a Brahmin woman residing at Karhwa. She says she became aware of Musammat Janki Koer's arrival at that village by meeting her casually on the road. She paid her a visit on Sunday, September 14th, the day being positively identified by the fact that it was the day of Anant Chaudas festival. She had some conversation with her and Musammat Janki Koer assured her that she expected to have her possession in respect of her late husband's zemindari formally recorded and then to come and reside in the village. For the present, she said, she expected to return to Cawnpore in a few days. According to Chitia's evidence, Musammat Janki Koer actually left Karhwa after nightfall on Thursday, September 18th. She was then in a, cart with the boy Durga. The accused Chadammi Lal and Gaya Prasad were also seated in the cart, the accused Raja Ram was driving it. and the accused Nannha was following it behind. Similar evidence, though not so definite in respect of time, is given by Sheo Balak Brahmin. Assuming that these witnesses are speaking the truth, this was the last occasion that Musammat Janki Koer and Durga were seen alive. We may take next the evidence of Debi Dayal, Chowhidar of Karhwa. He deposes that on the morning of September 20th, 1913, while passing through a strip, of jungle at some distance from Karhwa, he noticed that one of a number of stacks of wood, which had been recently cut and collected in for transport, had been burnt. The fire was still smouldering, and in the fire he observed traces of bones. The matter struck the chowkidar as so curious and suspicious that he first communicated with the witness Baldeo, and then went and reported the matter at the Police Station. The Investigating Officer, Sub-Inspector Ata Ullah, collected a number of bones from amongst the remains of the funeral pyre and he also found there, besides certain' officer articles with which we are not concerned, two keys. with one of these keys he was able to unlock a, padlock which Musammat Janki Koer had left on the door of the room in the house which she occupied at Cawnpore. We have examined the lock and the padlock in question and, in our opinion, the evidence as to the recovery of these keys is clear and reliable and strongly corroborates the case for the prosecution. There has been one unfortunate matter in connection with the bones taken from the funeral pyre, which has served to complicate the case and has led to a great deal of discussion both in the Court below and in this Court. The bones were first examined by Dr. Wazir Singh, Assistant Surgeon, who came to the conclusion that a number of these charred fragments of bones could be identified as human and as those of a child whose age could be placed at about twelve years. At a later stage after the proceedings in. the Court of the Committing Magistrate had commenced, the remains were forwarded to the Civil Surgeon for a second examination. Lieut, Col. Young, I.M.S., reported and has. desposed in evidence that the remains submitted to him included the bones of at least two persons one of whom was probably a, child of about twelve and the other almost certainly an adult, and most probably a young adult woman. Unfortunately the custody of the bag containing these bones while they were in the Committing Magistrate's Court was defective, and the proceedings connected with the forwarding of this exhibit for inspection by the Civil Surgeon were irregular. It has thus been left open for the defence to contend that an opportunity was offered for an unscrupulous Police Officer to have added fragments of bones belonging to an adult woman to the contents of the bag after the examination by Dr. Wazir Singh and before they were examined by the Civil Surgeon. We have given our best attention to this, point. The theory suggested on behalf of the defence seem to us seriously improbable and unsupported by the evidence. It must be remembered that the prosecution has put into the witness-box the constable Maqduni Bux, the investigating Sub-Inspector and the Court Inspector, all of whom must have been privy to this fraud if one was perpetrated. These witnesses have given evidence which if believed excludes the theory of such a mal-practice, and have stood cross-examination on the point. It seems to us far more probable that Dr. Wazir Singh either made a mistake, or was deliberately misled by some person acting in the interests of the accused. At any rate we decline to hold that any such malpractice as is suggested on behalf of the defence can reasonably be inferred from the evidence before us. Even if nothing more than this were, certain, namely, that among the remains taken from the funeral pyre were found bones which were the bones of a boy of about twelve years of age, this fact taken in conjunction with the other evidence and with the finding of the keys would justify the Court in inferring that the dead bodies of Musammat Janki Koer and the boy Durga were both consumed on this funeral pyre, and this is the conclusion we arrive at from the evidence. There was another witness Pema, Gadaria, who has been to some extent discredited by the Sessions Judge. His, evidence, if believed, proves directly that the four accused whose cases are now before us set, fire to the, pile of wood from which the, remains, to which reference has already been made, were subsequently taken. His, evidence is not directly corroborated, but it is extremely probable that some person or persons would have seen the light caused by the burning of this pile of wood. The fact that Pema found it expedient to leave the village the, following morning and to be absent some time is not in itself one which to our minds discredits his evidence. We think it deserves consideration. When the investigation, of the case was first taken up by Sub-Inspector Ata Ullah he was unable to find any of the accused. Raja Ram was eventually found and arrested in Karhwa on September 25th, 1913. Nannha was arrested; across the Jamna in the Jalaon District on October 10th, 1913, Two days later he was produced before a Magistrate of the first class at Cawnpore, The Magistrate in question has been examined as a witness. It is clear that he took all possible precautions to satisfy himself that the confession which he recorded was voluntarily made. He examined the person of Nannha and detected no marks of hurt of any kind. The confession then made by Nannha begins with the proceedings of September 18th and describes in detail the commission of the murder of Musammat Janki Koer and Durga and the subsequent burning of their bodies. It implicates the other three appellants as well as Nannha himself, though the, latter does his utmost, to minimise, his own share in the crime. There is a curious piece of direct corroboration of this confession in the evidence, of Kamta,, village headman of Karhwa. It, seems to us that this witness does not say anything more than he can help against the accused, but he proves that his bullocks were borrowed and used by Chadammi on the night, of September 18th, 1913, and that when they were returned to him the following morning a piece of new rope was missing. According to Kannha's, confession this rope was used to strangle, first Musammat Janki Koer and then Durga, and must, no doubt, have been burnt on the funeral pyre.
3. This is substantially the case for the prosecution. The accused have met it from first to last by a blank denial. They have not even any suggestion to put forward as to the identity of the bones found on the funeral pyre. Against most of the witnesses for the prosecution they make suggestions of enmity which seem to be of very little weight. Nannha retracted his confession about a fortnight after it had been made, and about a week after the chief accused, Graya Prasad and Chadammi Lal, had surrendered themselves and were placed in the lock-up. The accused have produced a quantity of evidence in their defence, most of which is directed towards proving that neither they themselves nor Musammat Janki Koer were in the village of Karhwa at any time between the 8th and 20th of September 1913. As regards the human remains which are put forward by the prosecution as the corpus delicti, they suggest that it was not an unusual thing for bodies of persons who died in the village to be removed to this spot and burnt. The evidence on this point seems to be most unsatisfactory and is contradicted in the clearest manner by the conduct of Debi Dayal Chowkidar, who obviously considered the facts observed by him so unusual as to necessitate a report at the Police Station. The defence, as a whole, has been sufficiently dealt with by the learned Sessions Judge and ' we do not think it necessary to discuss it further. The confession of Nannha we believe to have been voluntarily made, and we believe further that it contains a substantially true account of the manner in which this crime was committed, though it minimises his own share. Taking into account Nannha's confession, along with the evidence on the record, in our opinion the learned Sessions Judge has rightly convicted the four appellants of the offence charged. The murder had been carefully premeditated and was a singularly brutal one.
4. We are not prepared to interfere with the sentence, except as regard the order of forfeiture of Chadammi Lal's property passed under Section 62, Indian Penal Code. It seems to us that that section should ordinarily be applied in cases of crimes against the state or affecting the safety of the public generally. Moreover, to confirm this order of forfeiture would be to punish the innocent members of Chadammi's family. We set aside this portion of the order. For the rest, we dismiss the appeals of Gaya Prasad, Chadammi Lal, Raja Ram and Nannha and confirming their conviction and sentences direct that the latter be carried out according to law.