1. In this case the appellant, Dwijendra Chandra Mukerjee, was found guilty of murder by the majority of the Jury (4 to 1) and sentenced to death by the Sessions Judge of Khulna. He has appealed, and the matter comes before us also on a reference under Section 374, Criminal Procedure Code. The petition of appeal contains no less than 27 grounds based on the alleged errors of law and instances of misdirection on the part of the learned Sessions Judge. None of these, however, have been touched upon in the argument before us and it was conceded for the appellant that there had been no want of fairness in the trial. The main facts of the case are not in dispute. The deceased girl, Aparna Debi, was the second daughter of Purna Chandra Bhattacharya of Senhati. Senhati is about five miles from Khulna on the other side of the river. Purna Chandra died some time ago. Aparna was married to Charu Chandra Mukerjee of Pabla near Daulatpur. He is the Head Master of the Siddipasa High English School. At the date of her death, 12 November 1914, Aparna was about 14 years of age. She had attained puberty in the preceding Chaitra and had resided with her husband at Pabla, but at the time of her death was living in her father's house. The other inmates of the house were Satish Chandra Bhattacharji, her cousin and the present head of the family, her mother, Bidhu Mukhi, her elder sister, Charubala, her aunt, Birajmohini, Saradindu, a boy of about 12, a cousin, and the infant daughter of Satish aged seven or eight. Another aunt, Monmohini, also lived in the compound but in a separate hut. She was old and infirm and does not appear to have had any knowledge of the occurrence.
2. Dwijendra, the appellant, is the son of Saroda Charan Mukerjee, who resides at Senhati and is President of the local punchayet. The appellant himself was a Head Constable in the Police force at Khulna. He had a gun, a single-barrelled 12 bore breech-loading hammer gun, for which he held a license. It is in evidence that he was fond of shooting and had shot a leopard. He also shot pigs and birds. A number of cartridges were found in his house, some loaded with shot others with bullets, both lethal and spherical. Some he appears to have loaded himself, using black powder. It is also in evidence that he often carried the gun, especially at night, for his own protection. He had been employed in the Criminal Investigation Department and may have been in some danger from political suspects. He was well acquainted with all the family of Purna Chandra Bhattacharji. Purna Chandra had been the guru of his father, Saroda, and Bidhumukhi was the preceptor of Saroda's wife. Dwijendra was a frequent visitor at Purna Chandra's house, and it is said that he always treated Charubala and Aparna with the respect due to daughters of his guru. There is no evidence of anything approaching impropriety in the relations between Dwijendra and Aparna. There is evidence that there was some dispute between the family of Aparna and that of her husband about money matters, but it does not appear how far Dwijendra was aware of this. On 10th September 1914, Satish, as head of the family, had written a petition to the Khulna Police complaining of Charu Chandra's ill-treatment of his wife (Exhibit 1). This was given by him to Dwijendra to deliver, but later on he asked him not to deliver it as the matter had been settled. The petition, however, remained with Dwijendra and was found with him after the occurrence. It is also in evidence (though Satish now denies it) that Dwijendra accompanied Satish when he brought Aparna back from her husband's house. The precise date, of that is in doubt but it was either at the end of Bhadra or beginning of Assin, i.e., in the week 12th to 19th September 1914. Charu Chandra was absent from Pabla when his wife left, and it appears that his absence was secured by a bogus telegram. There is nothing, however, to connect Dwijendra with that telegram. All that can be said to be proved is that Dwijendra knew of the trouble between Aparna and her husband, and of her return to her father's house and the reasons for it.
3. On the evening of the occurrence, 12th November 1914, about 7 or 7-30 p. M. Dwijendra was met on the road leading from Sarada's to Purna Chandra's house by the two Kabirajs, Bejoy Kumar Sen Gupta and Hementa Sen Gupta. All were going to the north and Dwijendra overtook them. Some remarks passed between him and Bejoy as to some medicine. He was carrying a gun under his arm. He had a chadar tied round his bead, galpatta fashion, and wore a long black coat and slippers. Hementa said to him you are going out at night armed with a gun. Some accident might happen.' To this Dwijendra gave no reply but passed on. The witnesses went to the house of Ambika Charan Sen, their co-sharer.
4. It should be stated that the plan annexed to the proceedings, shows correctly the buildings, etc., in Purna Chandra's bari and also the roads in the locality. There is no question as to its correctness and, therefore, no necessity to describe it in detail.
5. About or shortly before 8 P.M. the state of things in Purna Chandra's bari was as follows: Birajmohini was in the western kitchen. In that kitchen was a tin lamp by the light of which the boy Saradindu was eating his evening meal. There was also a hurricane lamp on the verandah. Satish was in the eastern kitchen cooking for himself, Bidumukhi, Charubala and Aparna, who messed together. Charubala, who was far advanced in pregnancy, could not cook, and Aparna would not. She had cooked the midday meal, but was offended with her mother, who had slapped her for some trifling offence. Bidhumukhi was giving Satish's daughter her food in the eastern kitchen. Charubala and Aparna had gone to the hut of their other aunt, Monmohini. About that time Satish asked Birajmohini to call them to come and eat their supper. She did so and they returned. Charubala went to, and remained for a short time at, the western kitchen speaking to Saradindu. Aparna went on, passed the eastern kitchen and went into the dalan and into the middle room in the northern building from the east. About the same time Dwijendra came into the bari from the south. Birajmohini saw him pass her, that is, pass the western kitchen. Bidhumuki also saw him pass along the roivak to the east and enter the northern building by the eastern door. Satish's little daughter cried out 'Oh grandmother, Dwijen is entering the house with his gun uplifted.' Charubala then came to the eastern kitchen and her mother told her to call Buri (the pet name of Aparna) to come there. Charubala then entered the house by the eastern door, which would take her into the eastern room. Almost immediately afterwards came the report of the gun, which was heard not only by the inmates of the bari but by others in the village. There is no doubt that Aparna was then and there shot dead by Dwijendra, whether intentionally or by accident, in the middle room of the northern building. The bullet, which was fired at a very short distance, struck her on the left temple about an inch from the eye, passed through her head and emerged behind the right ear, just above the mastoid process. It struck the eastern wall of the room 22 inches from the ground i.e., just above the tahhtaposh and fell to the ground behind the takhtapnsh, where it was discovered on the 14th by Mr. Cornish, District Superintendent of Police. Charubala cried out ' Mother, Buri has gone,' and then Dwijen has shot Buri dead and has gone away.' It is undisputed that Dwijendra did run away. He left the northern building by the southern door, and in his haste fell over a heap of firewood which was lying in front of the southern steps. He left his slippers behind in the courtyard and just outside the bari he dropped the fore-end of his gun. He was seen running away, within the bari, by both Bidhumukhi and Birajmohini, and on the road outside going south by Bejoy and Hemanta. Bejoy was for catching hold of him but Hemanta held him back, saying he might get shot. Dwijen had the gun still in his hand. Both the ladies and Satish went at once to the room where Aparna had been killed. They found her lying on the tahhtaposh against two pillows. Her head was to the north and her face to the west. Her legs from the knees downwards were over the south end of the takhtaposh. The mosquito-curtain, which was hanging by three of its corners from the north and east walls, was alight in two places and Bidhumukhi put out the flame by slapping it with the palms of her hands. Satish appears to have been so overcome with the shock that he swooned. He was revived by pouring water on his head. When he came to senses, he went or was taken to the baitakkhana. By this time, a number of the villagers had assembled, including Nepal Chandra Chakravarti, Saroda Charan Mukerjee, Akhoy Dutt, Dr. Amrita Lal Sen, Bhola JMath Chakravarti, Nibaran Chandra Sen, Kanai Lal Sen and three choukidars. Some of these persons depose to hearing the ladies of the house crying Oh Dwijen, what a calamity (sarbanash) have you wrought on us!
6. In the baitakkhana in the presence of a number of the villagers Satish wrote out a letter to be sent to the Police at. Khulna. The first draft (Exhibit 3) was not completed. The wording was slightly altered and the letter re-written and signed by. Satish (Exhibit 2). As it is of importance, I set it out in full:
The High in Dignity, the Officer in charge of the Thana,
A cat used to infest our house, and I asked my disciple, Head Constable Dwijen Mukherji, to kill that cat. Dwijen came after evening; and chasing the cat he entered into our northern dardalan and fired on the cat. But he missed his aim; and my sister Aparna Debi, who was lying on a cot in the ghar came to be shot on the head, and died in consequence thereof. I have no enmity with Dwijen. Finis. Dated Senhati, Thursday, the 26th Kartick, 1321.
Sd/. Satish Chandra Bhattacharjee,
7. This was despatched at once by a messenger, but as he could not get a boat to cross the river, it was not recorded at the Police Station until 7 A.M. on the 13th. Meanwhile the body of the girl was left lying as it was found, the room was locked and a chowkidar put on guard.
8. Jai Kumar Chakravarty, Sub-Inspector of Police, who was at Hajigram, heard of the occurrence about 2 A.M., and at once proceeded to Senhati, arriving about 6 A.M. He held an inquest. He has described how he found the body, which was in the same position as it had been left overnight. He also found an earning on the floor. This evidently came from the girl's left ear, as that in the right ear was in place, and had been forcibly removed, as the hasp was straightened out. Dwijendra's slippers the Sub-Inspector found lying some 3 or 4 cubits apart by the southern rowak. He sent for Dwijendra, who came at 10 or 10-30 A.M. and explained how he had come to shoot the girl, where he was standing and so forth. Dwijendra's house was searched that afternoon. Nothing much turns upon what was found there.
9. On the 14th November Mr. Cornish came to Senhati. He too examined the premise's and as above stated, found the bullet by the wall beneath the takhtaposh. He too questioned Dwijendra and heard his version of how the girl had met with her death.
10. Thus far the facts are not seriously disputed. There are two alternatives for consideration in this case: (1) Has tie prosecution made out a case of deliberate killing? (2) Was the death of Aparna Debi the result, as the accused maintains, of an unfortunate accident? It might, of course, happen that, while disbelieving the theory of accident, the Court might consider that the prosecution had not made out their case, but that is not the case here. If the accused puts forward a substantive defence of accident within the purview of Section 80 of the Indian Penal Code, it is incumbent upon him to prove it. Here the accused has called no evidence. He relies for proof of any fact upon the oral or documentary evidence put -before the Court on behalf of the Crown. As the acceptance of either alternative means the rejection of the other, they may be conveniently considered together. Now, apart from the facts detailed above, there is a considerable body of evidence which, if believed, leaves no doubt that Dwijendra murdered Aparna, and entirely negatives the theory of accident. In the first place, how did he come upon the scene? On behalf of the accused an attempt was made to show that he spoke to Saradindu in passing the western kitchen and also greeted Satish in the eastern kitchen with the words 'Thakur Mahashai'. It was argued that a man who had gone there with the deliberate intention of murdering the girl, would not thus make his presence known to the inmates of the bari. Now there is nothing upon the record to show, nor do I understand it to have been the case for the Crown, that the murder was so deliberate and premeditated as that. Whatever may have been his motive for visiting Aparna that evening, there is nothing to show that he had already resolved to kill her. At the same time it is not proved that Dwijendra spoke either to Saradindu or to Satish on his arrival as alleged. Saradindu in the Sessions Court in examination-in-chief said he saw Dwijen pass the kitchen, but made no mention of his calling out. In cross-examination he said he did not remember if he did so, or if he had given evidence before the Committing Magistrate to that effect. In the Magistrate's Court, he had said that some one called out 'Indu' and that the voice seemed to be that of Dwijen Mukerjee. It was suggested by the defence that this witness had been tampered with. There is no foundation for this suggestion, and if there was any tampering it was from the other side. Of this, there is the evidence of the Sub-Inspector, who saw Akhoy Dutt tutoring Saradindu in the verandah of the Court. The witness is a child of 10 years old and it would be unsafe to rely upon his statements, the more so as pressure was brought to bear upon him with regard to them. It is true that Bidhumukhi says she heard Indu call out who goes there and Dwijendra answered that it was he. On the other hand Birajmohini, who was in the western kitchen with Saradindu, flatly denies that Dwijendra called to him, and we may accept her statement. Then Satish, no doubt, says that while he was cooking some one called out Thakur Mahashai to him from the courtyard. Before the Committing Magistrate he had said that some one had called out to him, but that he could not make out whose voice it was. Bidhumukhi says that though Dwijendra often called out Thakur Mahashai, on this occasion he said nothing. We may take it that Dwijendra came through the courtyard and passed into the house without attempting in any way to conceal his arrival, but without speaking to any one.
11. The next evidence in chronological order is that of Charubala. Now she claims to have been an eye-witness of the deed, and if her evidence be accepted, the case for the Crown is proved. She had stopped at the western kitchen, while Aparna had gone on into the house. Charubala followed after a short time entering the northern building from the east. She says: I then went to call her (Aparna) from the middle room. I got as far as the door between the middle room and the eastern room. I saw Dwijen standing in the centre part of the middle room. Seeing me he took something out of his pocket and turned to the west. I told my sister to come and eat her rice as it was ready. As soon as I said this, Dwijen turned round to the east and levelled his gun. I said, Dwijen, what are you doing? He firedhis gan and said I am giving her something to eat.' The shot killed my sister; When I went to the place, my sister was lying down with, her face resting on her right hand. She was not lying flat down, but was reclining against the pillows.' Before the Committing Magistrate, Charubala did not claim to have actually seen the shot fired. There she said that she heard the report as she was entering the eastern room by the eastern door, and that she ran into the middle room in time to see Dwijen escaping by the south door with his gun in his hand. She has explained why she did not tell the whole truth on that occasion. Though her reasons on paper may not appear very cogent, I think that what she now says is substantially true. It may fairly be asked why, if it were really and truly an accident, should Charubala and the other members of Aparna's family combine to perjure themselves and make what was only an accident appear as a crime. It was suggested that they had done so at the instance of Dr. Amrita Lal Sen, who, it was said, was on bad terms with Dwijendra and owed him a grudge. There is no foundation on the record for such a suggestion. It is true that Dr. Amrita Lal Sen from the first declined to believe in the theory of accident, and did not hesitate to let the Police know his opinion. He also recommended and insisted upon a Police investigation. But this any impartially minded man would have done under the circumstances, which, to say the least, were highly suspicious. In my opinion advantage has been taken by the defence of the untimely death of Dr. Amrita Lal Sen to foist upon him much in this case for which he was not in the slightest degree responsible, and in particular the responsibility for the case being pressed against Dwijendra. Dr. Amrita Lal Sen was seized with smallpox about the time of the trial in the Sessions Court and died before the trial was concluded. His evidence before the Committing Magistrate was rightly put in and read at the trial. He had not, however, been cross-examined, though the accused had the opportunity to do so, and the suggestions now made were, of course, not put to him. They are mere suggestions and I see no reason to suppose that the testimony of Satish and the other members of his family or indeed that of any of the witnesses for the prosecution was at all more unfavourable to the accused by reason of any action or influence of Amrita Lal Sen. I can see no other possible reason why the members of Aparna's family should depose falsely against the accused. An important question is what amount of light there was in the middle room at the time when the gun was fired. As to this, the evidence is not absolutely clear, but there appear to have been two lamps in the eastern kitchen which lighted the verandah and the courtyard to the east of the house. There was also an earthenware lamp inside the house. Bidhumukhi says that she had placed it in the eastern room of the dalan near the door leading from the eastern to the middle room and that it was so placed in order to light both rooms. Charubala now says that this lamp was in the south window of the middle room. Before, the Magistrate she had said that she came into the middle room carrying a lamp, but this she now admits was not the case. She does, however, say that there was a hurricane lamp burning at the south west corner of the bed. Bidhumukhi also says that Charubala immediately after the occurrence had told her of this hurricane lantern, and Bidhumukhi further says that Dwijendra was carrying a lantern, when he came. There seems to be some doubt about this lantern, but the evidence is clear that there were two lamps in the eastern kitchen, which would light up the space between that and the house, and there was a lamp just outside the door between the two rooms which would give light to both. The middle room was certainly not in complete darkness, as was suggested on behalf of the accused. The next question of importance is the position of Aparna when she was shot. The statement of the accused, to which he consistently adhered, was that he was entering the middle room from the closed verandah on the south in pursuit of a cat, which had run into that room, that when he was just on the threshold of the south door towards the west he brought down the gun from his shoulder to point it at the cat, that the gun went off, and the bullet hit and killed Aparna. Now this would be impossible if Aparna was lying, reclining or sitting on the takhtaposh. The evidence shows that the muzzle of the gun when fired was within three feet of and probably not more than two feet from her head. This is shown by the fact that her face Was scorched, her left eye-brow and hair singed and her clothing burnt in one or two places. Seeing this difficulty, it was suggested that Aparna was not shot on the takhtaposh, but while squatting on the floor near its south-west corner; since it was also supposed that there must have been a considerable flow of blood from the wound (as indeed there was) the further wild suggestion was made that there had been a pool of blood on the floor and that Amrita Lal Sen had washed it up. The fact that he was seen washing his hands with ashes shortly before he left the house about 2 A.M. that night was the only foundation for that suggestion. Then it was said that Aparna must have been lifted from the floor on to the takhtaposh and this was put to one or two of the witnesses and denied. For this suggestion too there is no foundation in fact. If she was shot while sitting on the floor by a man standing up, it appears impossible that the bullet should have struck the wall where it did, i.e., four inches above the takhtaposh and 22 inches from the ground. The evidence proves conclusively that Aparna was shot as she sat or reclined upon the cot. The pillows were soaked with blood, and there was a pool of blood beneath the takhtaposh at the spot where her head lay. The fact that brains and blood were found by the wall shows that her head was somewhere near the wall, while the fact that the bullet struck the wall at right angles indicates that Dwijendra was somewhere in the middle of the room, and not at the south door as he alleges. From his statement to Mr. Cornish, it appears that the cat could not have been much more than two feet from the muzzle of the gun when it went off. This is absolutely inconsistent with the undoubted fact that Aparna's head was about the same distance from the muzzle of the gun at the same moment. In conclusion on this point it is proved beyond all reasonable doubt that the accused entered the house by the eastern door and not from the south verandah. His statement, therefore, about his pursuit of the cat from that direction cannot possibly be true.
12. It may be well at this point to deal generally with the accused's defence of 'accident'. It appears to me to have only two circumstances to recommend it, one that there had been some talk in Purna Chandra's house a few days before about driving away or killing a cat, and the other that it was undoubtedly raised at an early stage of the proceedings. There seems to have been some talk about a strange cat which was coming to the compound and causing some annoyance. But the result of the conversation was certainly not such as would justify Dwijendra in coming to the hart as he did and without further permission firing at the cat inside a small room 14 feet 6 inches by 9 feet. The ladies had expressed a reluctance to have the cat killed at all. It would have been abhorrent to them to have it killed in a room where they used to sit. But in my opinion it is wildly improbable that had he come with the intention of shooting a cat, Dwijendra, who had a good knowledge of fire arms, should have acted as he did. He would certainly have spoken to Satish or some one about it first, and obtained definite permission. There is nothing but Dwijendra's statement to prove that the cat was there at all that evening. If it was and he did follow it as he says, it is incredible that he should think of shooting it with a 12 bore bullet within a small room in complete darkness. As to the gun going off by accident, that too is highly improbable. The gun was produced in Court. It has a very stiff pull and would be most unlikely to discharge by accident. Then if it was an accident, why did he run away? If this fact stood alone it might not have much weight. But here we have the case of a man who, as he says, by an unfortunate accident has taken the life of a girl friend in a house where all the family were his friends. Is it not more likely that he would remain and express contrition, and do what he could to make amends? Instead of that he bolts away in the darkness like a criminal. In his haste, he drops his slippers, he falls over the heap of firewood, and then allows the fore-end of his gun to drop off. This last implies haste and some violence, as the fore-end is by no means easy to remove. An attempt was made by the defence to prove that when running away Dwijendra cried out 'ki karte ki karilam', an expression which might indicate a feeling of horror at what had happened. The child Saradindu was the only one who speaks to this. As I have said above, his evidence cannot be trusted. It cannot, therefore, be taken as proved that Dwijendra made use of any such expression. Then we have the letter written by Satish to the Police. Satish says that it was dictated to him and that he was made to write it. Of this, there can be no doubt. His state of mind was such that he could hardly have written it of his own motion; but there is an even more cogent reason than that, which is that it was impossible for Satish to have personal knowledge of the facts narrated. The suggestion that it was dictated by Amrita Lal Sen is absurd. Moreover he did not appear on the scene until the writing was nearly complete. It was clearly inspired by some one who wished to screen Dwijendra. There is evidence that it was Dwijendra's father, Saroda, who dictated the letter, and this I believe 'to have been the case. Dwijendra presumably ran away to his house, so that he would, have seen his father before he came to Purna Chandra's house. They may very well have agreed upon what should be said. Saroda then taking advantage of Satish's weakness got him to write the letter. This reduces the significance of the 'cat' theory being advanced at an early stage, to nothing at all. The last piece of evidence against the accused is the letter, dated 22nd December 1914 (Exhibit 7), written by him from Jail to his father. This was intercepted by Amirta Lal Sen and by him made over to the Police through his brother, Mohendra. As to the genuineness of the letter there is no question. The request to his father to have the old fore-end of his gun fitted with a new steel piece and stamped with the number and the maker's name, may be susceptible of an explanation compatible with innocence. But in that letter he also asks his father to use all his endeavours to persuade Chota Thakurani (i.e., Bidhumukhi) and Charubala to depose in his favour. Again he says: 'Please tell Satish Thakur Mahashai that if my life be spared it will do him no harm' and again: 'After consulting the Counsel please win over (or get into your hands) the witnesses of the Thakurbari, otherwise there will be danger.' This does not read as the letter of an innocent, falsely accused man. It is true that in this case there is no evidence, which indicates the motive for the murder. If, however, the evidence as to the deed is sufficiently convincing (and in my opinion it is), it is immaterial to consider with what motive it was done. If, as I find, Dwijendra fired at Aparna at a distance of two or three feet, there can be no doubt that he intended to kill her. It is idle to speculate why he did so. What passed between them in that room is now known only to Dwijendra. There is no need to suppose that the act was premeditated, or that he had gone to the house with a fixed intention to murder the girl. It may have been done on the spur of the moment, the act being facilitated by the fact that he had the gun and cartridges with him. It is nonetheless murder. After giving the case the fullest and most anxious consideration, there is only one conclusion to which I can come, viz., that the accused intentionally killed the girl and that the story of accident cannot possibly be accepted. It is against all the evidence in the case and in its details utterly improbable. It does not appear why the Jurors who brought in the verdict of guilty recommended that the extreme penalty should not be inflicted. I agree with the learned Sessions Judge in my inability to see any extenuating circumstances.
13. I would dismiss the appeal and confirm the sentence of death.
14. This case presents a feature very unusual in cases in this country, viz., an admission of the act which caused death, coupled with a plea of accident. And because it is such an unusual plea, the facts must, I think, be examined with particular care, for it would be lamentable if a candid story were rejected too lightly or from expecting too high a standard of conduct from the accused immediately after the accident, if accident it was.
15. We have only one person, the accused, who can tell us exactly what happened in that room, for in my opinion we cannot accept the story of Charubala, as told in the Sessions Court, that she actually saw the occurrence. It is possible that she may have seen what she says she saw, but the explanation for not telling the story in the Magistrate's Court, is not to my mind entirely satisfactory; at any rate it would be extremely unsafe to act on evidence so far in advance of the evidence given in the Magistrate's Court.
16. The accused has this in his favour, that his acts do not suggest a premeditated murder. The slippers which he wore are heavy and without heels and caused a shuffling sound as he walked. They are not the sort of footwear one would expect a man to use who wanted to conceal his presence. The position in which they were found, indicates that they were discarded or fell off as the accused ran away, rather than deliberately taken off before the accused entered the building. If the accused called out to Satish, as Satish says, though Bidhumukhi denies the fact, that does not suggest an intention to conceal his presence. This act is, of course, open to the suggestion that he wished to see if the coast was clear. Apparently Satish did not answer, and there is, therefore, nothing to show that accused knew that anyone of the household was about. Neglect to conceal his presence could, of course, be reconciled with the theory of premeditated murder on the supposition that accused intended to plead accident, but if he had a story of accident ready, his flight from the spot is inexplicable, except on the theory that thinking his presence to have been unobserved, he suddenly abandoned that idea. But I do not understand the Crown to have committed itself to the theory of premeditated murder.
17. Saradindu's evidence that when accused ran out of the building he cried out 'ki karte ki karilam' is strongly pressed in accused's favour. If true, the ejaculation is capable of explanation as one of remorse for an act done intentionally on failure to achieve some object, as well as of an act done unintentionally. Unfortunately Saradindu mentioned this ejaculation of the accused for the first time at the trial and there is good reason to think that attempts were made on the part of the accused to influence the witnesses, though in regard to the Sub-Inspector's evidence that he saw Akhoy Dutt tutoring Saradindu in the Court premises, I feel sceptical. The explanation which he gives for not informing the Public Prosecutor or the Court Inspector, is to my mind insufficient.
18. The statement of Satish Kandu, that accused said 'Buri has been killed by a bullet from my gun,' is a statement of the same class, suggesting accident. The witness's evidence in the Sessions Court is an improvement on that given in the Magistrate's Court, where the accused, when asked by the witness who he was, is reported to have said only 'I' and nothing more. In this case, however, a statement to the same effect as that made in the Sessions Court had been made by the witness to the Police during the investigation. If true, the accused could not then have been attempting to conceal his identity: it is possible that accused had then realised that Birajmohini had seen him and possibly also that Charubala and Saradindu had, and concealment being useless thought that his safest course was to allege accident.
19. The strongest point in accused's favour is the apparent absence of motive. The learned Deputy Legal Remembrancer suggests that the motive though known, was concealed to avoid a scandal. On the evidence there is nothing to support the suggestion, and the absence of motive would be enough to turn the scale in the accused's favour in the absence of any account but his own, if that account were a reasonable and possible one, and not shown to be untrue. I am prepared to accept the story that a strange cat had been a nuisance to the household, that Satish had expressed a wish that it should be made away with and that the accused was prepared to shoot it. On the theory that Satish believed that accused was chasing the cat, learned Counsel for the accused based his explanation of the letter that was sent to the Police giving information of the occurrence. He argued that Satish put two and two together and so sent the letter, which is true in its main detail but not in all the facts, and that Amrita Lal Sen Gupta, whom he made responsible for all accused's troubles, attempted to suppress the letter; but throughout his argument, till reply, repudiated the idea that accused's father, Saroda, had anything to do with it. He then conceded that possibly Saroda brought information to the household that it was an accident.
20. I am not prepared to accept the theory that the information was guess work on the part of Satish, a guess that happened to be correct in its main detail. If it had been merely a matter of inference, it is highly improbable that he would have stated it as a definite fact. It is not suggested that any one in the house saw the cat that evening. Saroda was early on the scene and it seems to me not only in the highest degree probable in any event that he brought the story of firing at a cat which Satish was willing to accept, but if the defence set up by the accused is true, it seems to me that that is the most natural thing to have happened, for if accused was afraid to face the household, it was very natural for his father to go and explain matters. But that line has not been taken: it would have made Saroda's appearance in the witness-box an absolute necessity on behalf of the defence, and the defence must for some reason or other have been unwilling to risk that.
21. I am not prepared to accept the suggestion, made on no sound basis, against Amrita Lal that he got up the case against the accused. If Amrita Lal was responsible for the members of the household giving false evidence or suppressing the truth, he would not have openly stated in his evidence that he told the chowkidar to inform the Police that he did not believe in the theory of cat-killing and have requested the presence of the Superintendent of Police. That he did send this message is supported by the formal information drawn up by the Sub-Inspector on the morning of the 13th.
22. I have said that we must not too lightly reject a candid story of accident. Equally, we must not too lightly accept a story to which by reason of its apparent candour we naturally incline. When a theory of accident is set up, we are entitled to a full and, so far as possible, detailed account of what happened. In this case we do not get it. The accused was ill advised enough to give equivocal answers to the Committing Magistrate and some of his statements were untrue. This does not matter much as to the fact of his alleging accident, for he had alleged that long before, but it was the first opportunity he had, in the course of the enquiry, of disclosing the facts to a Judicial Officer.
23. Then in the Sessions Court he put in a written statement, which alleges that he could not see whether there was any one in the room when he began to aim at the cat, because there was no lamp in the room, but omits to explain what is extremely important, how he came to know, after the gun had gone off, that he had killed Aparna.
24. This practice of refusing to answer questions in the Sessions Court and of putting in a written statement, which it may be said has now become almost universal in the Province, but which is largely a growth of recent years, is a very pernicious practice and in my opinion the sooner it is put an end to the better. There is no provision in the Code for the making of a written statement by an accused and the obvious object of the practice in many cases is to defeat the provisions of Section 342, Criminal Procedure Code, probably based on some idea of the Legal Advisers of the accused that he may give himself away. That section if used intelligently by Judicial Officers, is of great use to accused persons for whose benefit the section was enacted. A written statement drafted by an accused's Legal Adviser can never have the same value as answers coming directly from the accused's mouth, and it cannot anticipate the points on which the presiding officer considers explanation desirable. It frequently happens that verbal explanation is refused and the promised written statement never filed. The refusal to answer questions may be attended with great risk to the accused, for the Court is bound to question him and a refusal to answer may involve an adverse inference against him.
25. In this case, the putting in of a written statement instead of answering questions is particularly to be deplored, for it is clear that on a story of accident many questions naturally arise. Four obvious questions are, how did accused know that he had killed Aparna, why did he use ball cartridge to shoot a cat, how did a gun with so stiff a pull go off accidentally, and why did he run away. The first of these is particularly important, as I shall show later: I am willing to assume that a possible explanation could be found for the other three facts, which are prima facie suspicious.
26. One extremely important point against the accused is the statement of Bidhumukhi that she saw accused enter the building by the east door. If believed, that statement at once stamps accused's story as untrue. As is natural there are some statements in her evidence in the Sessions Court, which are not to be found in her evidence before the Magistrate. Any difference that there may be between the two depositions is not of great importance, but this particular statement was made in the Magistrate's Court and inspite of its importance, there was no cross-examination on it. No doubt the accused had already indicated his defence which was inconsistent with that statement, but the witness ought to have been pressed' on that, which is perhaps the most important statement in her evidence. If failure to cross-examine on it was an accidental omission, which is improbable in Counsel of Mr. Roy's experience, it was a most unfortunate one.
27. The accused pointed out to the various Police Officers engaged in the investigation, the spot at which, he said, he was when the gun went off. His statements do not appear to be consistent. Mr. Cornish says the distance was about four yards from where the woman was. This is rather an inaccurate method of description. If it means four yards from her feet there is a great difference between the spot shown to Mr. Cornish and that shown to Sub-Inspector Jai Kumar Chakravarti, to whom the spot shown was 8 or 8| cubits from deceased's head. If Mr. Cornish referred to the deceased's head, and the language will hardly bear that construction, the two places are the same. The difference involved in Mr. Cornish's looseness of description is practically the whole length of the girl's body. The spot pointed out to the Deputy Superintendent is stated by him to be 3| cubits to the southwest of the door. He did not measure the distance till six weeks later: In the circumstances the accuracy of his memory as to the exact spot, may be questioned, though evidently it was not quite the same spot as that pointed out to Jai Kumar.
28. It might possibly be suggested that the difference in the spots pointed out to the different Police Officers, could be explained on the supposition that the accused's attention was more entered on the pointing out of the direction of his fire than the exact spot at which he stood. This supposition would hardly explain the varying positions given by him to the cat. But let that pass; there might be some confusion as to the exact position of an animal of rapid movement such as a cat, and let us assume for the purpose of argument the position most favourable to the accused, the one pointed out by him to Jai Kumar. That would be just by the south-east corner of the westernmost of the two door pillars. That point is 12 feet from the point where the bullet hole in the wall was found and 6 feet 3 inches from the edge of the takhtaposh.
29. From that spot, the girl could not have been shot in the position in which she was found lying in the bed. Nor could she possibly have been shot, if, as suggested, squatting on the floor at the foot of the bed. The position of the hole in the wall, if nothing else, makes that impossible.
30. Now comes the importance of having a statement from the accused how he knew the girl had been killed when he had not seen her before. Death must have been instantaneous, she could net have cried out and hardly have moved. He must, therefore, have seen her. Accused's suggestion practically commits him to the case that the girl was sitting on the floor or fell on the floor, and that must be untrue, for I have no doubt that she was found on the bed by the first person who entered the room after the gun was fired.
31. Now, it is a rather curious thing that a shot fired from the place shown by the accused at 5 feet from the ground--I take 5 feet as about the probable height of accused's shoulder as it is argued he was a tall man--directly at the hole in the wall would pass the edge of the takhtaposh 2 feet 6 inches about it, which would be about the height, the girl's head might be expected to be if she were sitting at or near the edge of the takhtaposh. Exactitude is impossible for we don't know the height of the girl; she is said to have been about the same height as Charubala and was apparently tall for her years as the Civil Sergeon seems to have over-estimated her age--he puts her down as aged about 16 whereas in fact she was about 14. If she had been shot when sitting on the takhtaposh near the edge, it is possible that she would have fallen in the position in which she was found. This was not a theory advanced on behalf of the accused, but one which I thought ought to be considered in view of accused's allegation that he did not see the girl before his gun went off.
32. There are two difficulties to accepting such a position. In the first place, assuming accused's contention to be correct that there was no lamp in the room, there would have been a background of light, for the light from the lamp in the eastern room must have fallen across the takhtaposh though the southwest corner would have been outside its rays, and the accused could hardly have failed to see the girl with the background of light. In the second, there is the more serious difficulty that if there had been any scorching at all, it would not have been to the extent observed in this case. The distance from the accused's shoulder to the girl's head would have been not less than 6 feet 9 inches and from the muzzle of the gun to her head not less than 2 feet 11 inches. In the experiments made by Mr. Cornish, there appeared to him to be no scorching at 3 feet, while in the present case there was a great deal of scorching on the face and head.
33. Added to this, is the fact that the shape of the hole in the wall made by the bullet led Mr. Cornish to the opinion that the bullet had been fired at right angles.
34. The physical appearances then contradict the accused's story; and it is disproved at the start by the evidence that accused entered the building by the east door.
35. I have most anxiously considered the case, giving the accused the advantage of every possible theory for the points left unexplained in his story even when that story ought to have been explicit, and I can come to no other conclusion but that the girl's death was not due to any such accident as described by him.
36. I, therefore, agree in thinking that we ought to dismiss the appeal and confirm the sentence of death.