1. This is a case of one Dukari Chandra Karmakar whoso case has been referred to us by the learned Sessions Judge of Birbhum under the provisions of Section 307, Criminal P.C. The accused Dukari was tried before the Sessions Judge sitting with a jury on a charge of murdering his wife Sakti Kumari. Five of the jury found the accused not guilty. The remaining four of the jury found him guilty under Section 302, I.P.C. The learned Sessions Judge apparently agreeing with the minority has referred the case to this Court under Section 307, Criminal P.C.
2. I would draw the attention of the learned Sessions Judge to the provisions of Section 307, Criminal P.C., and point out to him that it is necessary for him to state clearly what offence, in his opinion, the accused is guilty of. It is not correct for him to state that he is 'inclined to agree with them.'
3. The facts of the case are briefly these : The accused Dukari was married to the deceased Sakti Kumari a girl at present some 15 or 16 years of age some 6 or 7 years ago. It would seem that there was an arrangement at the, time of the marriage that Dukari should reside in his father-in-law's house as a ghar jamai, and apparently he so remained for one and a half months. His father-in-law lives in the village of Panchpara. Apparently, however, this arrangement did not satisfy Dukari and he wanted to go away to his house which he did. The girl remained with her family while the accused went away to the village of Bamnigram some 6 or 7 miles away. It would seem that from time to time the girl did go to her husband's house. But the relation between Dukari and his father-in-law and the girl's aunt Rohit Kumari did not seem to have been very cordial. Rohit Kumari brought up Sakti the deceased and gave Sakti her own ornaments at the time of the marriage and she refused to allow Dukari to take away his wife without giving ornaments to her; the girl on her part would seem to be unwilling to go to her husband's house without ornaments. There was at one time a criminal case between the parties and a petition was lodged by Dukari under Section 552, Criminal P.C., to the District Magistrate of Birbhum. This matter appears to have been settled. The girl went to live with her husband for some time and then again returned home. On 26th Jaistha 1335 corresponding to 9th June 1928 the accused Dukari came to his father-in-law's house. He stayed in the house that day and he also remained on 27th Jaistha the 10th June. He went out in the evening and returned at about one prahar at night, took his meal with his. father-in-law and then retired to rest to an upper room where his wife Shakti Kumari, the deceased, shortly joined him and the door was bolted. The next morning the aunt Rohit Kumari seeing that the girl Shakti did not come down went upstair, to call her. On pushing the door she found it open and on going inside she found the girl lying dead with a number of wounds on her body in a pool of blood. The accused Dukari was not there. Information was at once given to the thana and the usual enquiry was set on foot. The accused Dukari was not to be found at his home. Nor was he found on search by the police. A proclamation was issued and his property was attached on 15th August and on 30th August he surrendered himself in Court. After usual enquiry by the Magistrate he was committed to Sessions on a charge of murder and was tried with the result that I have already noted.
4. The accused has contended himself with the plea of not guilty. He stated before the Sessions Judge that he was innocent and he used to love his wife deeply and she also loved him in return and, therefore, it was impossible for him to murder her. He does not give any explanation why he was absconding from home up to 30th August. Nor, as far as I can see, has any explanation 'been attempted to be given by his counsel. On his behalf it seems to have been urged in the Sessions Court that either he was not at the house of his father-in-law or if he was there he did not murder the girl. Suggestion also seems to have been thrown out entirely unsupported by any evidence that the girl was of a bad character and that the young men of the village used to frequent the hut. I may say that there is not a scrap of evidence to support this suggestion and to my mind it is extremely improper to make a serious allegation of this sort against the character of a dead person without any single scrap of evidence of any sort to support it.
5. The case against the accused Dukari rests on the evidence of persons who saw him in the village on 26th and 27th Jaistha and of his relations who saw trim go to the upper room with his wife in the evening and who found her body there early in the morning. If this evidence is believed, and I shall discuss the evidence later on, there can I think he no doubt that it was the accused Dukari who killed the girl Shakti when in addition we find that he was absconding for nearly six weeks immediately after the murder.
6. On the question of his presence in his father-in-law's house on 26th and 27th Jaistha and of his going to sleep with his wife in the upper room there are the evidence of Manindra, Rohit Kumari, Aghore, Kamini and Nikunja who are his relations and who saw him retire to rest with his wife. The neighbours Suresh, Mohendra and Sashi Bhusan saw him in the village on 26th and 27th Jaistha. I have carefully considered the evidence of the witnesses and I can see no reason whatever to disbelieve them or to think that they are telling a false story., Their evidence is given, as far as can be seen in a simple and straightforward manner and nothing has been brought out in their cross-examination to shake them. Only two points really remain to be considered; one of them arises from the evidence of Rohit Kumari, the aunt of the deceased girl. Rohit Kumari was one of those who saw the girl go up to the room anu bolt the door. She would seem to state that the girl did not take any meal that night, while the evidence of the doctor was that the girl's stomach contained undigested meal of rice. None of tie other witnesses, however, was examined on the question as to whether or not the girl did eat anything that evening. It is quite possible that she did eat something unknown to Rohit Kumari. The learned advocate who has appeared for the accused has asked us to hold from this fact that Rohit Kumari was not observing what the girl was doing. Even if that were correct there still remains the evidence of the other witnesses who deposed to the events of that night.
7. The next point which has been urged on behalf of the accused is the evidence of one Radha Gobinda Mandal. This witness was tendered for the prosecution and was cross-examined by the defence. His statement was that on 27th Jaistha at about 1 or 1 1/2 prahar of the night he saw Dukari passing by the side of his house with a shirt on and an umbrella with him. On being questioned by him Dukari replied that he went to Panchpara and was now returning from there. No doubt if the witness was deposing to the truth this would be a fact strongly in favour of the accused person, because Bamnigram is at some distance from Panchpara and if the accused was at Bamnigram at the time of the occurrence he could not be at Pancbpara on that night at about 1 or 1 1/2 prahar. It is, however, very probable that this witness in deposing to this fact was not certain of the time at which he actually saw Dukari or he altered the time in order to give evidence in Dukari's favour. I am not prepared to rely upon this witness in the face of a number of other witnesses who positively state as to the presence of the accused at the house of Manindra on the night of the occurrence.
8. The evidence, therefore, comes to this : that Dukari went to retire with his wife on the night of 27th Jaistha and shut himself in the upper-room. In the morning the door was found open and the girl was found murdered and Dukari was found absconding, and remained hiding for some six weeks. It is no doubt true that the mere fact of absconding does not necessarily prove the guilt, but it is a factor to be taken into consideration. It can no doubt in some cases be explained. In the present case no explanation whatever has been attempted to be given. I have no hesitation in coming to the finding that it was the present accused Dukari who had killed the girl Shakti Kumari. What was his motive or reason for killing the girl is known to him and him alone. It may be that he was annoyed because she did not come to the house. It is always a matter of speculation as to the motive with which any human being does any particular act but when the facts are clear, the motive is immaterial. The medical evidence shows that the girl had some four wounds, three on the head and one on the shoulder. They were apparently caused by a large sacrificial knife which was found covered with blood close to the body. This knife was used by Manindra and also by the accused himself to perform certain sacrifices. The nature and severity of the wounds can leave no doubt whatever that it was the intention of the assailant to kill the girl. The first wound was an incised gaping horizontal wound on the right side of the head 3' long going right through the sculp and skull and reaching the brain; the second was an incised gaping wound; parallel to the first 4' long and 1/2' wide below the first going through the sculp and reaching and fracturing the skull; the third wound was an incised gaping wound extending from outer angle of right eye to below the right ear, 5' long and 2' wide reaching bone and going through the bone at outer angle of right eye. Whoever struck these blows must obviously have intended one thing, namely, to kill the victim. I have no hesitation in finding that Dukari the present accused is guilty of murder Section 302, I.P.C. In coming to this finding I have taken into consideration the opinions of the Sessions Judge and also of the jury so far : as regards the opinion of the jury five of them were of opinion that the accused was not guilty and the four found him guilty. Therefore the difference is not very much. The learned Sessions Judge who heard the evidence and had the opportunity of observing the demeanour of the witnesses was of opinion that the accused was guilty.
9. I now come to the question of sentence, I have given the case my careful consideration and I am of opinion that it was a cruel and brutal murder perpetrated apparently without any adequate motive on a defenceless girl apparently in her sleep. There is no adequate reason given to me why the sentence of death should not be passed on the accused. Section 367, Clause 5, Criminal P.C. provides that:
if an accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death the Court shall in its judgment state the reason why sentence of death was not passed.
10. Where an accused person is found guilty of murder therefore it is clear that the sentence of death has been considered as the normal sentence and the sentence of transportation for life as the abnormal sentence for which reasons are required to be given by the Judge why the sentence of death is not passed. This was not a murder committed in the heat of passion and as far as can be seen was done deliberately. The wounds show that the girl was attacked either in her sleep or certainly without any warning. It is clear that she was attacked while lying down, and there is nothing whatever to show that they were quarrelling at the time. Obviously it is for the accused who alone knew the exact circumstances under which he killed his wife to show the extenuating circumstances for it is a fact peculiarly within his knowledge. It is not for the Court to presume such circumstances. It may be that the accused was at the time labouring under a grievance, viz., that his wife would not come back or was not allowed to come back to his house. To hold that such a grievance or imaginary grievance is sufficient to justify a Court in passing the lesser-sentence is clearly to hold that murdering a wife is not a capital offence. He is a young man of 20 or 21 and obviously not a child who cannot understand what he was doing. Ordinarily I should bo reluctant to disagree on a question of sentence. But it seems to me that the present case involves a question of principle. As my learned brother is of opinion for reasons which he would give in his judgment that the lesser penalty is the appropriate one. The case must be laid before a third Judge under Section 429, Criminal P.C.
S.K. Ghose, J.
11. I agree with my learned brother that the accused should be convicted under Section 302, I.P.C. but with great respect I am unable to agree that it is a fit case for the death penalty.
12. I shall therefore confine myself to the question of sentence1 only. The facts which are material to that question are these : The accused Dukari Chandra Karmakar is a young man of 21. His wife Sakti Kumari, the deceased in the case, was aged about 15 at the time of her death. They had been married for about 7 years and there were no children. The parties belong to different villages. Ever since his marriage the accused had been in trouble about getting his wife to live with him. Her relations were putting all sorts of obstacles in his way and the girl herself was not sympathetic. At the time of the marriage there was a talk that Dukari should remain as ghar jamai. This was tried for some time but the accused did not find it suitable. His father-in-law Manindra was living with his family in the house of his niece Rohit Kumari P.W. 2. Rohit Kumari made certain demands from the accused and the accused on his part also demanded that some lands should be given to him, but this was refused. On this the accused refused to stay and Rohit Kumari said that unless the accused gave ornaments to his wife the latter would not be allowed to goto him. Some time later the accused filed a petition under Section 552, Criminal P.C., before the Magistrate alleging that his wife's people had kept her in their house with an evil motive. The matter was made up and the girl was left in her husband's house by Manindra. But this also was for a short time. In Assin the girl came back to her father's house but was again taken away by her husband for a. short time. Then followed some visits on the part of the accused but each time he failed to make his wife go with him. In the month of Jaistha a Bagdi woman was sent by the accused to take his wife to his house, but she was unwilling to go without ornaments. On the following day the accused himself came but he went away the next day without his wife. Ultimately on 26th Jaistha (9th June) the accused came to Manindra's house with the object of taking away his wife with him. But, as Manindra. says in the first information, he kept his son-in-law in his house telling him that his daughter would be sent on 5th or 6th Assar. The night of 27th Jaistha (10th June) was going to be the last night which the accused was going to spend on that occasion at his father-in-law's. That night the accused and his wife went to sleep in a bedroom upstairs. The accused had taken his meal as usual. In the bedroom there was a big sacrificial knife belonging to Manindra and the evidence is that it was kept there for safety as there were children in the house. Manindra is a. professional sacrificer and had been using this knife for the purpose of sacrifice, but the accused had also acted as his proxy on some occasions. There] is no eyewitness as to what happened that night. But early in the morning Rohit Kumari was the first to go upstairs and she discovered that the girl was lying murdered on the bed. The sacrificial knife was lying bloodstained close by. According to the medical evidence there were four gaping incised wounds; two were on the head, the skull being fractured, the third was on the right side of the face, and the fourth was on the right shoulder.
13. The medical evidence also is that very little movement was possible after the head blow which went right through the brain. The conclusion is irresistible that the girl was murdered as she was lying in bed and the weapon used was the sacrificial knife. The accused was not seen after the occurrence. The police could not find him out and processes were issued. P.W. 19 a resident of mouza Itanda which is about 10 to 16 miles from the village of the accused deposes that he saw the accused in the month of Ashar at the house of Sakti Thakur, the spiritual guide of the accused. The accused surrendered in Court on 30th August 1928.
14. Before going any further into the facts, I would like to make a few remarks on the principle on which the Court has to make its choice of sentence in the case of an offence carrying with it the death penalty. Section 367, Clause (5), Criminal P.C., provides:
If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed. Provided that in trials by jury the Court need not write a judgment, but the Court of Session shall record the heads of charge to the jury.
15. It may be said that apparently this provision in the Code of Criminal Procedure contemplates that death sentence is to be passed as a matter of course, unless there is sufficient reason to the contrary. But to proceed upon such a construction would be to make the alternative punishment the exception in murder cases. This, to my mind, is against the accepted view as found in the reported decisions and actual practice. In my judgment such procedure would also not be warranted by the words of the section. It occurs in Chap. 26 which deals with the form of the judgment. The section contains a variety of clauses dealing with the language and the contents of the judgment and so forth. Clause (5) itself contains a proviso which is applicable to trials by jury. In my opinion it is wrong to construe this section as referring to such a matter as the measure of punishment which goes beyond mere form. For certain offences, like murder and treason, the Penal Code provides the death penalty, as also an alternative form of punishment, namely transportation for life.
16. In such cases, the Court must consider the question of sentence with reference to the circumstances, and if these circumstances justify the passing of a sentence other than the sentence of death, the Court must pass that sentence. All that the first part of Clause (5), Section 367, lays down is that in such cases reasons must be stated in the judgment. This is a matter of procedure. By way of analogy I may refer to a rule of this Court, namely, Rule 72, Chap. 1, p. 27 High Court's General Rules and Circular Orders, Appellate Side, Criminal. It was there provided that in the column of remarks in the form of Sessions Statement which a Sessions Judge has to furnish he must state the grounds on which any person punishable with death has been sentenced to punishment other than death (S. 374, Criminal P.C.) This rule has since been cancelled. In Section 367, Criminal P.C., the legislature has not thought it necessary to provide that reasons must be given in the judgment for passing a sentence of death as well. But these reasons must exist in the mind of the Judge. It is unthinkable that a Judge will pass a sentence of death in preference to the alternative sentence without good and sufficient reasons. Only, as a matter of procedure, such reasons need not be recorded in the case of a death sentence. In the nature of things the judicial mind must be reluctant to pass the extreme penalty and to enact that reasons must be stated in the case if a death sentence might have the undesirable effect of encouraging the Courts to shirk what is after all an unpleasant duty. But the Penal Code simply provides alternative punishments and there is nothing which takes away from he Court the duty to see that in a particular case the punishment fits the crime. That I consider to be the true measure. Once you admit this, the position that by Section 367, Clause (5), Criminal P.C., death penalty must be the rule becomes untenable. As regards the death sentence, far from making it the ordinary penalty for the relevant offences, the draftsman of the Code stated that it ought to be sparingly inflicted. Experience shows that in practice this has been done, which once more proves that Section 367, Criminal P.C., does not touch the essence of the matter at all. Therefore, in fixing the measure of punishment one is to be guided, not by Section 367, Criminal P.C., but by various other matters, for instance, the enormity or otherwise of the offence and the particular circumstances under which the accused committed it. They all go back to the facts of the case. But in the case of the death penalty the Courts have gone so far as to consider matters which are not relevant to the crime, e.g. mere delay in passing judgment a circumstance bringing into play humanitarian grounds. I may add that I make these remarks without prejudice, as in the course of a long experience as Sessions Judge it has been my lot, perhaps an ordinary one, to send more than one person to his doom.
17. Whatever view may be taken of Section 367, Criminal P.C., it presents no difficulty in the present case, for I am satisfied that good and sufficient reasons do exist as to why the death penalty should not be imposed in this case. There is no direct evidence as to what happened immediately before the murder. But it is very probable that the accused having failed again to take his wife, and this being his last night with her, they had a difference before going to sleep. Everything points to the conclusion that the murder was not deliberately planned. I do not overlook the fact that a lethal weapon was used and that more than one blow was struck. But the evidence shows that the weapon was not taken there by the accused. It just happened to be there. I consider that the motive in this case is not an aggravating factor. The motive was a fit of desperate resentment which, in the circumstances, was not unnatural and for which the accused himself was not entirely to be blamed. We cannot overlook the consideration with regard to age. After all the accused is a mere lad. There is positive evidence that he has borne a uniformly good character, that he was a good boy, respectful towards his wife's relations, and not outwardly quarrelsome in relation to his wife, and this in spite of the unsympathetic treatment that he had been getting ever since his marriage. His last visit was one of many that ended in failure. This must have preyed on his mind. In the circumstances, with the utmost respect to my learned brother, I do not think that the case is a fit one for capital sentence. I think a sentence of transportation for life would meet the ends of justice. (On difference between the two Judges the case was referred to a third Judge who delivered the following judgment).
C.C. Ghose, J.
18. This matter comes before me as third Judge under Section 429, Criminal P.C., owing to a difference of opininon between my learned brothers Cuming, J., and S.K. Ghose, J. Both the learned Judges are agreed that the accused should be convicted under Section 302, I.P.C. Cuming, J., was of opinion that there was no adequate reason why the sentence of death should not be passed on the accused, while S.K. Ghose, J., was of opinion that on the facts appearing in this case and set out in his judgment this was not a fit case for a death penalty. During the week end after this matter had been referred to me as third Judge I had an opportunity of examining the entire record and of perusing the opinions of the differing Judges. It is unnecessary for me to set out the facts once again; they will be found set out at sufficient length in the judgments of my two learned brothers. Now it was laid in this Court many years ago by Woodroffe, J. that if in any case of murder under Section 302, I.P.C one finds that two learned Judges of this Court are in disagreement over the question of sentence one favouring the death penalty and the other recommending that the transportation for life would meet the ends of justice, that in itself is a sufficient ground for holding, that the death penalty should not be inflicted. Sometime ago I had occasion to refer to this opinion of Woodroffe, J. and I have always acted on that opinion. But it is not to be understood from what I have just said that the rule enunciated by Woodroffe is an inflexible rule or that the third Judge to whom the matter is referred on a difference of opinion on the question of sentence is not required to go into the case for himself and to judge for himself whether the case before him is or is not a, fit one for the infliction of the death penalty. I have, therefore, as I have just, said gone into the ease myself. In my opinion, the circumstances present on the record are of such a nature that I feel abundantly justified in taking the view that a sentence of transporation for life would meet the ends of justice in this case. I feel no doubt whatsoever that the accused was labouring under a serious grievance which was not unnatural in the circumstances disclosed on the record and that he committed the murder in question in a fit of desperate resentment. It is quite true he is not a child but it is equally true that he is a mere lad of 20. His visits to his father-in-law's place for the purpose of taking his wife to whom he had been married for about 7 years, to his house had always ended in failure and there are substantial reasons for coming to the conclusion that the treatment which he had received since his marriage at the hands of his wife's relations had been consistently unsympathetic. These are circumstances which must be taken into consideration. The question of appraising the sentence to be passed on a prisoner is at all times a difficult one. But I think in this case it would not be straining the language of Section 367, Criminal P.C., if I were to hold that the prisoner should be sentenced to transportation for life. I agree with S.K. Ghose, J., and I direct that the prisoner be convicted under Section 302, I.P.C., and be sentenced to transportation for life.