RUSTAM Vs. EMPEROR

JUDGEMENT

(1.) Rustam Ranghar, Pirthi, Mithani and Hoshnak Rajput have been convicted of the wilful murder of one Anup Singh and sentenced to death. The case has been submitted to us for confirmation of the sentences of death by the Additional Sessions Judge of Meerut. We have also before us a petition from Jail sent in by Rustam. Pirthi, Mithan and Hoshnak have had their cases laid before us by learned Counsel. The case for the prosecution has been very fully and carefully set out by the learned Additional Sessions Judge in his judgment, and we do not propose going into the facts of the case. We agree with the learned Additional Sessions Judge that it is beyond doubt that Anup Singh was murdered on the 10 of August, 1909. The Medical evidence shows that death was due to wounds on the neck which had divided the trachea and gullet and severed the vessels on both sides of the throat. Evidence is given by one Bijai Singh to the effect that on the 9 of August, he saw Anup Singh riding close by the spot where he was ploughing and with him was the prisoner Rustam. So far as the record shows that was the last time when Anup Singh was seen alive by any person or persons except those who murdered him. We have also the evidence given by one Radha, a boy 12 years of age, whose attention was called on the same day seeing 4 men standing at the corner of the sugarcane field where he was grazing his cattle. He noticed that they had a fifth man down on the ground. He went to see what was happening but was driven off by a man who threatened him with a lathi. He swears that Rustam was the man who ran to beat him. He also says that Rustam was pressing the throat of the man on the ground. He identified Rustam out of a number of other persons at the jail and so far as we can judge, his evidence touching this matter may be received without a doubt as to its accuracy. In addition to this we have two statements made by the accused Rustam himself. The first was made on the 21 of August 1909. In this statement he tells us that he had passed Bijai Singh Jat at the time he was with Anup Singh. Shortly after he says that the other accused in Court joined him, that one of them Hoshnak caught Anup Singh by the leg, gave him a jerk and brought him off the pony he was riding. He says that Hoshnak took out a knife and passed it across the throat of Anup Singh, while he and the accused Mithan caught hold of Anup Singh's legs. On the 16 of September, he clearly admitted that he was one of the four persons who killed Anup Singh. It is true that he afterwards withdrew these statements. . After examining his statements carefully we see no reason to believe that his first statements were either tutored statements or made under any illegal influence. The learned Additional Sessions Judge and the Assessors were satisfied upon this evidence as to the guilt of Rustam and we think rightly satisfied. The murder was a deliberate and cold blooded murder and without any extenuating circumstances. We dismiss the appeal of Rustam, confirm the conviction and sentence, and direct that the latter be carried out according to law.

(2.) There remain the cases of the accused Pirthi, Mithan and Hoshnak. The learned Sessions Judge convicts these three men upon the confession of Rustam which he accepts as undoubtedly true. He holds that the confession has been corroborated as regards these three men by the evidence of Bijai Singh, the herd boy Radha and Jhandu and the witnesses Harbhuj and Ganeshi Kumarhin, He thinks the last mentioned witnesses are all of them corroborated as to their statements and that these statements can be corroborated by the. evidence of the Sub-Inspector Sant Singh. We are not as strongly impressed by the confession of Rustam as the learned Judge appears to have been. The learned Judge looks upon the confession as a confession of which Rustam unbosomed himself eagerly and impulsively. The Sub-Inspector says that when Rustam came before him on the 20 of August, he at once poured over his story as though to relieve his mind. It is significant, however, to find that the Sub-Inspector did not consider the evidence sufficient against the others. The statement made the following day before the Magistrate is undoubtedly a long and detailed statement but it is noteworthy that the part which Rustam assigns to himself in the transaction is what many persons in the same condition as himself do look upon as a minor part on such a transaction. It was according to him Hoshnak who took out the knife and actually cut Anup Singh's throat. It was Pirthi who held down Anup's head in order to allow the throat to be cut. Rustam and Mithan, according to Rustam, merely caught hold of Anup's legs to prevent him struggling. It is difficult also to understand how, even under the circumstances described by Rustam, Hoshnak at any rate, if not Pirthi, could have avoided being stained with blood. The moment the throat was cut, blood must have spurted up and no amount of subsequent covering would affect that first rush of blood in any way. When we come, however, to consider whether there is any evidence on the record which corroborates the particular portion taken in the transaction by each of the accused individually, we are face to face with fresh difficulties. The witness Radha identified Rustam but none of the other accused, and in his statement Radha saysthat it was Rustam who was pressing down the man's throat. Two men he says were sitting on the fallen man, and two were standing, and the man who had fallen was moving his legs about, but. his hands were held down. His reason for identifying Rustam was that he was the man who ran forward to beat him and so frightened him off. The second witness Jhandu, also a herd boy but apparently an older boy than Radha, came to the spot just as Radha did and according to him it was the man who had the knife in his hand who ran after him. If Rustam is correct that man would be Hoshnak, and it was another man who ran to Radha. The only further corroboration that can be got from any of the witnesses above mentioned is that there were four men who were that day running away from where the body was found or were somewhere near the body at about the time when it was found.

(3.) In a case of this kind the question of motive is also one that cannot be lost- sight of and as regards the three men, whose cases we are now considering, nothing has been proved that can in any way be considered an adequate motive for the murder of Anup Singh. In the case of the witness Bijai Singh the only corroboration that his statement gives is so far as Rustam is concerned. He gives no evidence that in any way touches the other three accused. It is also noteworthy, though the matter is of minor importance, that on the 21 of August, Rustam stated that it was Hoshnak who pulled Anup off his horse, whereas on the 16 of September, he says that this act was done by the accused Pirthi. There is also another remarkable feature in the statement of Rustam. He tells us that the enemies of Anup were Mula and Parsa, and Mula and Parsa promised to give him Rs. 200 if he killed Anup. He leaves us under the impression that he was in fact detailed for the purposes of this murder by the bribe of Rs. 200. He inlroduces Pirthi, Hoshnak and Mithan quite suddenly. It is not likely that if the four men were to be concerned in the murder, there would not have been some previous council heldby them, some introduction of the three men to Rustam as persons who were to assist him in this foul deed. All he says is that "On Monday we started from Mulehra by the way leading to Mansurpur. There were 4 men in all, namely, Pirthi, Hoshnak, Mithan and myself." When they did not find Anup on Monday, they came again on Tuesday, thesame four men. Rustam, he says, went ahead, the other three remaining behind. Thene would be no difficulty in Rustam having invented any three persons to take part in this transaction, for he leaves us without any data by which we can in any way test the association of these three men with this murder. The men concerned might have been Mula ar.d Parsa, or they might have been any other persons. They may not have been three. All this part of the case is left in obscurity. We consider it too dangerous to act upon Rustam's statement alone and to say "that these three persons were associated With Rustam in the murder, or that there were three persons so associated. It is true that the boys Radha and Jhandu do so far bring the case nearer that they are positive that there were four men concerned in this murder. But even if we take their evidence to be absolutely accurate, we are still left with the difficulty that they were unable to identify any of the three men. Jhandu in his statement in the Court of Session says that he recognized Mithan as one of the four, but we have no doubt that this evidence is utterly untrustworthy. He had an opportunity to identify Mithan when the four accused together with other persons were drawn up for the purpose of identification, i.e., on the 28 of August. We do not believe him when, after being unable to identify any one on the 28 of August, he, on or about the 16 of September, identified Mithan as the man who ran at him with a lathi. Moreover if it be true that it was Mithan who ran to him with a lathi, he, fails to corroborate Rustam upon this very important point that/it was Hoshnak who held the knife and cut Anup's throat. The learned Sessions Judge attributes same value to the statement of the thanadar, who stated in answer to questions put by the Court as follows: "Bijai Singh told me that he had seen Rustam going along with Anup Singh on the day of the occurrence on the rajbaha bank near Johra. Radha said he was grazing cattle and saw four men beating a man on the rajbaha patti. Jhandu said the same thing, said he was grazing cattle with Radha. As justification for his view that these statements are admissible, the learned Judge refers us to the case of Fanindra Nath Chatterji V/s. King-Emperor 36 C. 281 : 13 C.W.N. 197 : 5 M.L.T.97 : 9 C.L.J. 199 : 9 Cr. L.J. 452 : 1 Ind. Cas. 970. Even if we accept what was laid down in that case, all that the statements can be used for is by way of corroboration of this one fact that on a particular day the witness mentioned made to him, the thanadar, certain statements relating to facts relevant to the investigation. The thanadar's evidence is of course no corroboration of the facts stated by the witness either to the thanadar or in Court and the value of the thanadar's statements in this particular case may be judged from this. Bijai Singh says on oath in the Court of Session: "I told the darogha, and Rahman the Mukhia and others I did not know." The thanadar tells us that Bijai Singh told him that he had seen Rustam going along with Anup Singh on the day of the occurrence on the rajbaha bank near Johra. It is difficult to see how the statement made by the thanadar can be corroboration of a statement which the witness himself says he never did make fo the thanadar. I mention this simply to show of what little use testimony of this kind is in a case while the danger of it is enormous. Sub- Inspectors are after all human beings. They consider it of vital importance when a crime has been committed to ascertain who committed the crime. Before their eyes, as they conduct investigation those facts become large which seem in their view to connect certain persons with the crime. Other facts at the time which did not so connect the case with the accused persons impress themselves so little upon their minds that either they do not record them at all, or if they do record them, not intentionally perhaps, in such a way that they seem to point in the same direction. No one who has experience of these matters can for a moment hold the view that a thanadar when he takes down statements made before him takes down the ipsissima verba used by witnesses. What he takes down is more or less the general result (matlab) as it appears to him of the statements made by the witnesses. The statement is as a rule never read over by him to the maker of it and indeed he would be a bold man who, surrounded by police officers, would, if the statement was read over to him, venture to say that the thanadar had incorrectly recorded what the thanadar thought that the witness had said. But the real danger is that in order to get corroboration of the fact that soon after an event occurred a witness made to the thanadar a statement which he makes in Court a mass of matter is introduced which sometimes with Judges and often with assessors ranks as evidence.