EMPEROR Vs. KAUSER ALI SKS/O KASEM SHEIKH

JUDGEMENT

(1.) This is a reference under section 374, Criminal P.C. for confirmation of the sentences of death passed upon the two accused Kauser Ali Sk. and Asmat (Ali) Mallik, who were convicted under section 302/34, Indian Penal Code. Along with the reference there is an appeal by the two condemned men. The verdict of the jury as against Kauser Ali Sk. was unanimous, but in the case of Asmat it was divided in the proportion of 5 to 2. Before saying anything about the merits of the case, a point of law raised on behalf of the appellants should be dealt with. Upon the order-sheet of the learned trial Judge the first entry under the date 9 August 1934 reads as follows: Owing to the paucity of Jurors, the trial commenced with seven Jurors. Out of eighteen Jurors called, only nine attended. Out of those nine one is too ill to sit and another gentleman, who is a Chemical Assistant in the Government Test House, Alipore, submits a letter from the Director, Government Test House, with the request to exempt the Assistant, as the Assistant is engaged in the testing of important war material. Thus, two gentlemen can t sit (one being ill.) The entry just quoted makes it clear that eighteen jurors were summoned for the trial, that nine attended, that out of these, two were unable to sit, and that in the result seven persons were empanelled as the jury for the case. As far as the record goes, it does not appear that it was practicable in the circumstances for the learned Judge to have empanelled a jury consisting of nine persons. It has nevertheless been argued on behalf of the appellants that the jury was not constituted in accordance with law. It seems to us that the point is covered by authority: see in this connexion the following cases, Emperor V/s. Damullya Molla ; Mukunda Murari V/s. Emperor ; Emperor V/s. Benat Pramanik and Emperor V/s. Kishori Khanra . The case in Emperor V/s. Benat Pramanik has been referred to with approval by the Judicial Committee of the Privy Council in Mirza Akbar V/s. Emperor . This point must accordingly be negatived.

(2.) The case for the prosecution very briefly stated was as follows: Accused 1 Kauser Ali Sk. had at one time been married to a niece of one Sona Sk. who is P. W. 10. After her death he married one Jamila Bibi who was an orphan living with her grand-mother Naju Bibi, P. W. 7, an old beggar woman. Kauser, who is a mill-hand, lived with Jamila in the eooly lines attached to a mill at Budge Budge. But there is some evidence that before the occurrence he used to spend his holidays in the house of P. W. 10 Sona Sk. Jamila whose age, according to the evidence, could not have exceeded 16, was in the habit of running away from Kauser and of going to stay with her grand-mother Naju Bibi. On Wednesday, the 3 of March at or about 6 o clock in the evening Kauser and Jamila together left their quarters in the cooly lines at Budge Budge, and there is evidence that Kauser said that he was taking his wife to Balarampore which is the village in which his relation Sona Sk. lives. At a spot not far from the cooly lines the pair were joined by accused 2 Asmat. They proceeded to a place which, as far as the evidence goes, would seem to be on the way to Balarampore and not far from that place. This place has been variously described in the evidence as Nandanpur and Nandarampur. Here the party halted for a time, and the accused Asmat went away and procured toddy some of which was consumed by the accused Kauser. Thereafter the party entered a bamboo grove, which as far as we can ascertain from the evidence on the record lies in secluded spot. Here Asmat stabbed Jamila to death with a knife, while the husband Kauser stood by.

(3.) As against Kauser the case for the prosecution would indeed seem to be that he took an active part in the murder by holding his wife by the hands while Asmat was stabbing her. After the occurrence Kauser appeared at the-house of his relation Sona Sk. where he complained of pains in the body, and said he-wanted to lie down. As regards the movements-of Asmat after the occurrence there is no evidence whatever. The body of the murdered girl was discovered on the following day when the police recorded an information of unnatural death, and took up the investigation. While "the investigating officer was moving round searching for clues and for any information which would lead to the identification of the murdered girl, the accused Kauser entered into another marriage, his third wife being another niece of p. w. 10 Sona Sk. The marriage took place on Sunday, 7 March. In consequence of information which the police were able to obtain, both the accused were-arrested on Tuesday, 9 March, and on the following Thursday, 11 March, the accused Kauser Ali made a confession before a Magistrate the material portion of which should here be set out : On Wednesday last at 6-30 or 7 in the evening I took my wife Jamila Bibi with me from the Budge Budge cooly Lines to the Star Field at Budge Budge. Assak Mallik was sitting there. He came with us from there and coming through a swamp we reached Poke-pari. Assak made us wait on the road and went away. Then he brought a Jhapa (earthen pot) of toddy and asked me to drink the same and he made me drink a glass of toddy. Thereafter he came from there taking us with him to the swamp at Balarampur and there he went to see a garden. Then he came back and took us to the garden. He stopped there suddenly and at this time my wife looked at me again and again. At this time Assak stabbed my wife on the back; my wife tried to clasp me and at this time I seized both of her hands and then Assak stabbed her further. Then my wife cried out babaray (I m finished) and fell down. Then Assak Mallik began to stab her and I fled away out of fear and I stood at a little distance. Q-Why did you take your wife to Assak Ali? A.-I wanted to do another act (to take another wife) but he told me that I would not be happy to do another act (of marriage) so long as one (wife) was in existence and he asked me either to sell or to put an end to the one in existence. I told him that I would not be able to put an end to her (life). He asked me to bring her to him and he said that he would do the needful. So I brought her. During the course of the investigation, the police were able to find some witnesses who were in a position to give evidence regarding the movements presumably on the date of the occurrence, of the two accused and the deceased woman between the time when they left the mill area, and that at which, according to the confession, the murder was committed. Prosecution witness 5 Dil Mohammad, a mill hand, deposed that on a Wednesday, at about the time of the murder, he saw Kauser going out with his wife after 6 P. M. after the mill had been closed. He asked the accused where he was taking his wife, and the latter replied that he was taking her to Balarampur. Not far from the cooly lines there is a football ground which is called the Star Field. Prosecution witness 16 Anguri Bhusan Ghosh who is an A. R. P. Warden, deposed that at about dusk on 3 or 4 March, he saw the accused Asmat sitting on the grass at the foot of a tree talking to another man. The witness was then talking to P. W. 17 Sital Banerjee who is also an A. R. P. Warden. The two wardens were on the look out for bad characters who might be prone to commit theft during the alarm and confusion caused by air-raids, and the witness suspected that the two men might be thieves. He questioned them, and the accused Asmat replied that he was waiting for his cousin's husband who had gone to bring his wife. This witness further stated that the man to whom Asmat was talking went away, and that Asmat was then joined by the other accused, Kauser, who was accompanied by a girl aged about 15 or 16. The witness says that he saw this party of three persons going away shortly afterwards in an easterly direction. Prosecution witness 17 Sital Banerjee corroborated the evidence of P.W. 16 Anguri Bhusan Ghosh.