1. This is the case of one Hazrat Gul Khan who has been tried by the learned Additional Sessions Judge of 24 Parganas sitting with jury. The jury found him guilty of murder under Section 302, I.P.C. The learned Judge agreeing with the verdict of the jury has sentenced the accused to death; and his case has been referred to this Court under Section 374, Criminal P.C. for confirmation of the sentence. The accused has also preferred an appeal against his conviction and sentence.
2. I may here note that the accused Hazrat Gul Khan was tried on the same charge once before. In that trial the jury unanimously acquitted him. The learned Sessions Judge who tried the -ease referred the case to the High Court and a retrial of the case was ordered.
3. The facts of the case are shortly these: The accused Hazrat Gul Khan and the deceased Mahammad Alim whom he was accused of murdering are Peshwaris. The deceased was the brother-in-law of the accused. On the day of occurrence, the 6th of November 1926, at about 8 or 9 p.m. Hazrat Gul Khan and a number of other persons were sitting in a certain baithak khana attached to the house in which the deceased Mahammad Alim lived. Mahammad Alim was lying on a khatia. The accused Hazrat Gul Khan came there and after some time got up and went to a certain waterpot for taking a drink of water. As he did so on passing the khatia on which Mahammad Alim was lying he pulled out a knife and struck the deceased. Mahammad Alim in his stomach. The accused then ran away pursued by some of the witnesses. On their way they met one Gul Hamid who is a watchman in the service of the railway company at Naihati railway station. They told him to try to arrest Hazrat Gul Khan. These witnesses then went to the thana. The thana officer behaved with what can only be described as great slackness. They did not take the trouble of recording statements these persons made to them or of taking cognizance of the case. They told them to fetch the wounded man. The witness returned to fetch him and found him dead. They then took the dead body of the deceased to the thana and a first information was then recorded. Meanwhile the accused Hazrat Gul Khan was arrested at or near Naihati railway station by Gul Hamid and some other railway servants and brought to the thana. On these allegations the accused has been charged with murder. The defence is a plea of innocence. He states that he was arrested as he got down from the train having come from a place called Matiabruz. He did not himself suggest why he had been falsely accused of the charge. It is suggested that some one else, perhaps Habib Sha, one of the witnesses, committed the deed and for some reason or other, which is, not given, Hazrat was accused of doing it.
4. Now, the two principal witnesses against the accused are Habib Sha and Abdul Kayem. Habib Sha is a man of some 60 years of age and Abdul Kayem is a boy of about 15 or 16. According to their statements they were actually present at the time when the murder was committed and saw the occurrence. They pursued the accused. After a very careful consideration of their evidence I am convinced that they have spoken the truth. Their evidence certainly agrees with each other. A few minor discrepancies have been pointed out between these two men's evidence. For instance one says that the assailant jumped over the bad after striking the blow, while the other says that the accused ran away round the end of it Further Habib Sha states in one part of his evidence that there was a quarrel between the deceased and the accused some 11 days before and that that was the last quarrel between them, while further on he states that there was a quarrel on the day of occurrence. These are obviously petty discrepancies of minor importance. One fact goes strongly to prove the truth of what they state, namely, that the name of Hazrat Gul Khan as the assailant was given out almost immediately after the occurrence. That is quite clear from their evidence and also from that of Gul Hamid, the railway watchmen. Unless Habib Sha had given out the name of Hazrat Gul Khan to the watchman Gul Hamind, Gul Hamind would have had no reason whatever for arresting Hazrat Gul Khan when he found him at Naihati railway station and taking him to the thana Further it is clear I think from the evidence of the police officers that when Habib Sha and Abdul Kayem went to the thana the first time they gave out the name of the assailant. The police officers say chat they did, but they, the police officers, did not trouble themselves to take down or remember it. But it is very difficult to imagine that Habib Sha would dare to give a different name when he came back to the thana a second time with Mahammad Alim's dead body. He could not possibly know whether the police officers did or did not remember the name he had given out when he first came there. In such circumstances he would not venture to change the name.
5. Mr. Camell who appears for the accused has argued that the story which this witness told is improbable, first, because Habib Sha and those accompanying him gave up the chase after meeting Gul Hamid and went to thana. There is nothing improbable at all in this conduct. Habib Sha is a man of about 60 years of age and Abdul Kayem is a boy of about 15 or 16. The assilant was armed with a knife and these witnesses, if their story is true, had just seen him use his knife upon Muhammad Alim. It was most unlikely that they were at all anxious to catch him up. He might have used the knife on them if they had caught him. Obviously their safest course was to go to the thana and to report the matter to the police and to leave it to them to arrest the accused person.
6. Then it is contended that it is very unlikely that the assailant would have gone to the railway station. I cannot see why. Probably or possibly his intention was to get away by train. But for the fact that Habib Sha had met Gul Hamid he would have probably succeeded. The evidence would go to show, I chink, that Hazrat Gul Khan was lurking about the outskirts of the railway station when he was arrested. It is impossible to argue that a man must follow some particular course of action in particular circumstances.
7. Next it is argued that there was no motive to commit the crime. It would be more correct to say that the prosecution has not proved any motive. When facts are clear it is immaterial that no motive has been proved. The motive which induces a man to do any particular act is known to him and to him alone, At the highest the prosecution can only suggest what is or may be the motive for any particular act. It may be known only to the assailant or possibly to the deceased and it is quite impossible to prove. Had the story been a concocted one it is more than probable that some story of quarrel at the time of assault would have been invented to explain the assault. The fact that there is none, to my mind, goes some way to show that the witnesses were relating exactly what they had seen.
8. Then it is contended that there must have been blood on the ground where the murder was committed and on the charpai on which he was alleged to have been lying and as there was not it was probable that the murder was committed somewhere else by some one else and the body was brought to the thana from some other place. There is really no substance in this contention. For there is no evidence on the point one way or the other. It may be that the bowels protruded and stopped the external bleeding. The medical evidence would go to show that there was a large amount of internal bleeding. No question was pub to the doctor specifically on this point, possibly because this view of the case is attempted to be made out for the first time in the appellate Court. Habib does say in his evidence and in the cross-examination that part of the bowels protruded. This would certainly to soma extent support the view that the prosecution has set up why there was not a large amount of external bleeding.
9. Then it has been argued that the learned Judge misdirected the jury as to the way in which they were to deal with the evidence of the witness Mir. Ali whom the prosecution had declared to be hostile. Mr. Camell contends that the learned Judge told the jury that so far as the prosecution is concerned his evidence should be totally disregarded and might be used by the accused adversely. Possibly this is the correct view of law. But the questions of misdirection are of less importance in a case of reference, for in a case of reference we are obliged to-come to our own independent conclusion as to the guilt or innocence of the accused person independently of the verdict of the jury or of the opinion of the Judge. Neither as far as I can see the misdirection, if any, really affected the verdict of the jury.
10. There is the usual suggestion that there were many witnesses who must have seen or known what had occurred and that these witnesses had not been examined. After the first trial this Court did give direction that certain persons named should be examined as witnesses. They were the persons who lived in the vicinity. But they were unable to throw much light upon the occurrence.
11. I have no hesitation in coming to the conclusion that it was the accused Hazrat Gul Khan who stabbed the deceased Mahomed Alim. The accused Hazrat Gul Khan made no attempt to prove the case he put forward that he was arrested on getting down from the train on his way from Matiabruz.
12. As to what the act of Hazrat Gul Khan amounts to, the view I take is that it would amount to murder. The natural result of plunging a knife into a man's stomach is death or such bodily injury as is likely to result in death. The man who plunges a knife into another man's stomach must know that it would cause death or such bodily injury as is likely to cause death and that hence death would be the probable result of his act. The man who does such an act therefore must be held to intend to cause death or such bodily injury as is likely to result in death, for a man is presumed to intend the natural consequence of his action. If he had not that knowledge or intention in the circumstances and he did the act with some other knowledge or intention then it is for him, in my opinion, to prove it, for that is a fact peculiarly within his own knowledge. I would therefore hold that the offence was murder and that seeing that the attack was made on an unsuspecting and apparently unarmed man the proper punishment is the extreme penalty of the law.
13. My learned brother, however, for certain reasons is of the opinion that the act of the accused amounted to causing grievous hurt with a cutting weapon. Although I do not agree in that view I am not prepared to differ from him.
14. We set aside the finding and sentence under Section 302 and find the accused Hazrat Gul Khan guilty under Section 326, I.P.C. and sentenced to ten years rigorous imprisonment.
15. Before parting with this case I think we ought to draw the attention of the Inspector-General of Police to the perfunctory way in which the police has dealt with the case. When complaint was first made at the thana, according to the statement of the police officer, the complaint was of a cognizable offence yet no attempt was made to record the statement of the person making the complaint or to make any enquiry.
16. Having given the case the anxious consideration that it deserves I have come to the same conclusion as my learned brother on most of the points that arise in it. It will serve no useful purpose to set forth the reasons on which my findings are based as most of them are the same which my learned brother has given in the judgment he has just delivered. I agree with him in his conclusion that the injury on the deceased was inflicted by the prisoner and none else, that the whole of the occurrence took place in what is referred to as the baithakkhana ghar in the evidence, and that the blow was struck when the deceased was lying on the khatia, as is the case for the prosecution. The two eye witnesses, P.W. 3 Habib Shah Mir and P.W. 4 Abdul Kayem, notwithstanding the variance that has on behalf of the prisoner been pointed out in their evidence, are in my judgment worthy of credit, and nothing, in my opinion, has been established which would entitle the Court to reject their evidence as untrustworthy, in so far as they purport to attribute the injury on the deceased to a blow dealt by the prisoner with a knife. The argument that P.W. 3 Habib Shah Mir himself might have dealt the blow is too fantastic to deserve any serious consideration. The enmity that has been sought to be established as between this witness and the deceased as affording a motive on his part to commit the crime is based upon an inference which even if sound is too far-fetched; and on the other hand his conduct immediately or soon after the occurrence chasing the supposed culprit, taking steps to get him arrested, and seeking the help of the police is utterly inconsistent with the supposition that we have been asked to make. I think the witness named the prisoner as the assailant immediately or very soon after the occurrence and there can be no vestige of a suspicion that there was any opportunity, far less any endeavour, to concoct a case as against the prisoner, or to implicate him falsely.
17. I think it may be reasonably held upon the evidence, such as it is, that the name of the assailant was given at the thana by the witness when he went there for the first time at about 8 p. m. and I am not prepared to put upon the passage in the evidence of P.W. 21, Sub-Inspector Kamala Pati Sen Gupta, the meaning which the prisoner's learned Counsel desires us to do, the passage which runs in the words:
Beyond saying that one man had struck another with a knife they said nothing further then about the accused.
18. I do not think the witness meant to suggest that the name o the accused was not given, having said a few moments earlier that he could not remember the names that were given. In my opinion the passage only means that no further details as to what the accused did were given beyond the infliction of the injury with a knife. If the assailant was then named at the thana, it is inconceivable that it could be any other than the one who was charged in the first information lodged at the same thana only two hours after by the same informant. - Again, it is fairly clear that the arrest of the prisoner took place in consequence of the information which P. W. 3 Habib Shah gave to P.W. 6, the railway watchman, Gul Hamid Khan, very soon after the occurrence and before Habib Shah and others started out for the thana. Added to this is the evidence of the other eye-witness P.W. 4 Abdul Kayem against whom I can find nothing which can lend the slightest colour of a suspicion that he would be party to a conspiracy to save the real culprit and implicate an innocent man against whom he had no cause of grievance whatsoever.
19. I may say in passing that P.W. 5 Mir Ali was allowed to be declared hostile and cross-examined by the prosecution for no appreciable reason whatever. For this, however, the trial Court was not to blame; the mistake was made in the Court of enquiry. The reason given in the petition filed by the prosecution for this purpose in the Court of the committing Magistrate was utterly inadequate and the course thus adopted is to be deprecated as having contributed to the difficulties in the case.
20. I am not prepared to say that the witnesses P.W. 8 Jumayet Khan, P.W. 9 Debi Miah and P.W. 10 Miajan Shah are not truthful witnesses; but I am unable to set much store by their evidence in view of the fact that they were not examined before the committing Magistrate in the enquiry that was held prior to commitment and were not examined at all at any stage until after the case was remanded by this Court, and more especially as two of them were not even examined by the police in the investigation that was held before the prisoner was sent up.
21. As regards the witnesses who speak to the arrest of the prisoner nothing much turns upon the details, so long as we can find, as I do find, that it was in consequence of the information given by P.W. 3 Habib Shah to P.W. 6 Gul Hamid Khan that the arrest was made.
22. The main difficulties in the case have been due to a combination of circumstances, notable amongst which is the want of promptitude on the part of the thana staff in dealing with the information that was conveyed to them at 8 p.m., when Habib first went to the thana and to the perfunctory character of the investigation that followed the first information which was recorded at 10 p.m. The whole thana, not excluding the thana clock itself, seems to have been out of order on the day in question. The police diary does not show that in this case, in which a charge of murder was being investigated, the statements of all the eyewitnesses were fully recorded under Section 161, Criminal P.C. Learned Counsel for the prisoner has not been slow to make such use as he was legitimately entitled to make of the evidence of the police witnesses, their want of recollection, their defect of observation, the inquest report and the first information. But for the force of circumstances that exist, and the satisfactory nature of the direct evidence that there is in the case, a miscarriage of justice would probably have resulted.
23. A more difficult question in my opinion that calls for decision in this case is the offence of which the prisoner should be convicted. The medical evidence shows, and that is entirely consistent with the evidence of the eyewitnesses, that only one blow was inflicted on the lower part of the abdomen. It was a penetrating wound, margins being clean cut, transverse in direction 11/4 long communicating with the abdominal cavity. The wound was directed backwards, the peritoneum being injured by a clean cut corresponding to the injury described above. The coils of the intestine were cut in five places, three in small and two in the large intestine. All the injuries communicated with the cavity of the intestine. The left side artery was half-divided. The knife with which the injury was caused was, according to the medical evidence, probably very sharp. It has not been found and of its dimensions nothing is known. If the evidence of the eyewitnesses be accepted in its entirety, the prisoner armed with the knife appeared in the baitakkhana, waited for some time, talked with those present there quite leisurely, drank a glass of water, asked Habib Shah if he would like to have a glass of water and on his answering in the affirmative gave at to him, dealt the blow on the deceased and quietly walked out of the room taking up his lathi that was near the door. One of two hypotheses is possible under the circumstances either that he had come prepared to kill the deceased, or that he was suddenly seized with a homicidal mania. Either hypothesis it is difficult to accept. That a man who has formed the intention to kill another and has armed himself with a knife for the purpose would think of coming up accompanied by somebody from whom he did not expect any help that he would sit down and quietly talk with two other men for some time, drink a glass of water, give a glass of water to another in the room and then in the presence of all deal the blow to inflict which he came, is a story which, in itself, is somewhat improbable or at least out of the ordinary.
24. But apart from it, the nature of the injury, in my opinion, is not positively indicative of an intention to kill: one blow with a knife the dimensions of which are not known, the force with which the blow was dealt being more or less a matter of speculation, and the length of wound being consistent with the supposition that it was plunged and taken out and not indicating a desire to rip the abdomen open. There is no evidence either way as to whether the prisoner was or was not in the habit of carrying a knife. Motive though not a sine qua non for bringing the offence some to the accused is relevant arid important on the question of intention, and of motive what there is or has been established is hardly adequate to lead to a conclusion that there must have been an intention to cause death. On the question whether the prisoner intended to cause such bodily injury as he knew to be likely to cause death or such as is sufficient in the ordinary course of nature to cause death, the medical witness should have been asked to give his opinion on the nature of the injury and its likely and natural effects, but in this respect his evidence is silent. I am unable to hold, therefore, that the intention requisite to constitute murder has been made out. As regards the theory of a sudden fit of homicidal mania, the intention to kill is not manifest upon the character of the injury, and there is no history at its back. To deduce knowledge on the part of the prisoner as to the likely result of his act so as to hold the prisoner liable for culpable homicide similar difficulties present themselves. Moreover the evidence seems somewhat inconclusive as to whether the prisoner had a talk with the deceased just before the act was committed, the passage in the evidence of P.W. 3 Habib Shah being not incapable of that interpretation. If there was any conversation or altercation between the two we are entitled to know what it was about and the exact nature of it, and that would have enabled us to judge more accurately of the prisoner's mentality either on the question of his intention or of his knowledge, either directly or with the aid of the presumption that one must be taken to intend the nature or probable consequences of his act a rule of English criminal law which originally but a rule of evidence has now acquired the dignity of a legal axiom, but which it is not always quite easy to apply to the Indian criminal law in view of the distinction that the Indian, Penal Code makes between intention and knowledge. It should not also be forgotten on the question of knowledge, that much depends on the intellectual capacity of the actor, a savage often thinks differently from a civilized man.
25. I am not sure that in the evidence we have before us all that immediately preceded the assault. The safer course in my opinion, instead of resorting to the process of inferential reasoning, in view of the circumstances to which I have referred, is to take the facts as they are and to convict the prisoner of voluntarily causing grievous hurt with a knife which falls well within Section 326, I.P.C. I am inclined therefore to convict the prisoner under Section 326, I.P.C. and sentence him to rigorous imprisonment for ten years.