SURENDRA NATH MUKERJI Vs. EMPEROR

JUDGEMENT

(1.) On the 3rd of December last, somewhere about 2 o clock in the day, a young Bengali, Surendra Nath Mukherji, whose age is given in the record as 22 years but who according to his father s evidence was not yet quite 20 years of age, presented himself at the Kotwali Police Station at Allahabad and made a certain report, a record of which was entered in the Police register provided for the purpose. In consequence of this report the City Inspeotor, Muhammad Said, proceeded at once to the house in the city in which the said Surendra Nath Mukherji was living. He found the door leading into the inner apartments locked and it was opened, with a key produced from his person by the above mentioned accused. The latter then led the way to a certain room on the north-east side of the courtyard which was fastened on the outside by a chain. He unchained this door and led the Police Officer and certain witnesses, one of whom, Bande Husain Khan has been called at the trial, into the room. On the floor was lying the corpse of a young girl named Sunilabala Debi, wife of Surendra Nath Mukherji aforesaid. As to the age of this girl there is some little conflict of evidence, but we shall not be far wrong if we take it to have been about 15 years. She was quite dead and was wearing only a bodice and a loin cloth. Some part of this loin-cloth was in some way drawn together or heaped up under the back of the neck. There was a slight cut or incision on the great toe of each of the feet, and with reference to these the accused made a statement and produced from a recess in the same room an implement with which he said those incisions had been made. The corpse was subsequently examined by Mr. Kashi Nath, Assistant to the Civil Surgeon of Allahabad. With regard to the incisions above spoken of Mr. Kashi Nath was quite satisfied that they had been inflicted after death, and this is in accordance with the statement to which the accused himself has adhered throughout. The only other external mark of injury was a slight redness of the skin on the left side of the neck. This was evidently a mere patch, described in the Assistant Surgeon s evidence as 1|- inch long into f inch broad. A further examination of the corpse disclosed that death was almost certainly due to asphyxiation, but beyond this the Assistant Surgeon was not prepared to go. He was asked a number of questions as? to the" possibility of death by strangulation or death by suffocation and as to the presence or absence of indications tending to prove that this suffocation, or strangulation, or whatever it was, had been in its nature either homicidal or suicidal. The general effect of his evidence seems to me to be to leave these questions absolutely open. In one portion of his evidence the Assistant Surgeon seemed to incline towards the belief that death had been caused by suffocation rather than by strangulation, though he admitted himself to be puzzled by the absence of any marks of external injury about the mouth or nose. At the very end of his examination after he had protested that he was unable to give any decisive answer on the question of strangulation or suffocation, he told the Court that on the whole strangulation by means of a soft cloth seemed to him more in conformity with the post mortem appearances than any other theory. This is in itself an opinion expressed with much doubt and reserve; it is not altogether consistent with other portions of the evidence given by the same witness. It is difficult to understand how, on the theory of strangulation effected in this manner, the only mark left upon the neck should have been the small red patch already referred to. On the evidence, moreover, it would seem that what is ordinarily the most characteristic symptom of death by strangulation, namely, the protruded tongue, was entirely absent. Surendra Nath Mukherji was eventually put on his trial on the charge that he had murdered his wife. Of the Assessors who heard the evidence one finds him guilty and the other not guilty. The learned Sessions Judge, finds him guilty and has passed sentence of death. The record is before ns for confirmation of that sentence and we have had the advantage of hearing the petition of appeal presented on behalf of the convict argued by Mr. Ross Alston. The evidence on the record is admittedly most scanty. At the very outset of the trial a question arose as to the admissibility in evidence of the statement recorded at the Kotwali Police Station at 2-30 p.m. on December the 3rd. The learned Sessions Judge was at first disposed to reject that statement as inadmissible by reason of the provisions of Section 25 of the Indian Evidence Act. Later on, upon further consideration of the provisions of Section 27 of the same Act, he has allowed it to be put in evidence. I have no doubt that the provisions of both these sections apply to the circumstances stated and require to be considered. A mere statement in evidence by the City Kotwal that the accused came to the Police Station and made a report, in consequence of which the corpse of his wife was discovered in an inner room of his residential house, would be calculated to work unfairly from the point of view of the prosecution and from that of the defence; Section 27 of the Indian Evidence Act was no doubt introduced on purpose to obviate the possibility of such unfairness. Under that section the City Kotwal was unquestionably entitled to depose that Surendra Nath Mukherji came to him at the time and place stated and said: I have killed my wife, her corpse is lying in my house," and that inconsequence of this statement the woman s corpse was discovered as indicated by the accused. Now when once this much had been deposed to OH behalf of the prosecution, the defence were clearly entitled to require the production of the record made at the time at the Kotwali Police Station and to insist upon the proof of the whole of that record if they thought it advisable to do so. I think that the statement should have been put in evidence in this manner at the request of the defence; but as the case stands, I see no reason to object to its appearance on the record and I find it necessary to consider it in some detail. According to this statement the accused Reported that his wife had been seriously misconducting herself for sometime past and that she had been carrying on an illicit correspondence with another man. For this reason, the statement says, the accused made up his mind to kill her. He arranged that he should be alone with her in the house at about noon on the day in question. He had spent the night in remonstrating with her, and continued to do so; but her only reply was, "leave me alone: I want to go away." Thereupon the accused tied her loin cloth round her neck and killed her, after which he inflicted the two incisions on the great toes already spoken of. With regard to these the explanation given in the statement is that the accused had heard that persons, strangled by means of a piece of cloth would come to life again.

(2.) On the following day, the 4th of December 1917, the accused, having spent the night in Police custody, was placed before a Magistrate of the First Class, to whom he made a confession. We have before us the record of that confession and also the evidence of Mr. S.E. Anthony, the Magistrate who took it.

(3.) According to Mr. Anthony, as soon as he, began to question the accused and before he had even completed the preliminary questions which a Magistrate always puts in these cases, the accused interrupted him by saying: "I have killed my wife." The confession itself adds very little to this bald statement. It repeats the allegation of unchastity against the girl in general terms, and adds that the accused had obtained possession of letters written by her to some other man. For this reason, he says, he murdered her by strangling her with the dhoti she was wearing. After the enquiry preliminary to commitment the accused was again examined by the same Magistrate on the 21st of December 1917. He then declined to answer most of the questions put to him and claimed his right to reserve his defence for the Sessions trial. To the Sessions Judge the accused said that he had gone out on the morning of December the 3rd and returned about 11 o clock, to find, the house door shut and no answer returned to his knocks. He then climbed over one of the walls and, in the closed room already spoken of, found his wife lying dead with bar own loin cloth tied round the neck. He unfastened the cloth and, in the attempt to discover whether life was quite extinct, inflected the outs on the toes which have already been: referred to. He came out of the house, locking the door behind him and told one Tarak Nath Mukherji, a telegraph signaller, what had happened. On the advice of the latter he first sent a telegram summoning his own father, who was in Calcutta at the time, and then went to the Police Station intending to report that his wife had committed suicide. He alleged that, somewhere inside the Polios Station, before he went upstairs to the room where the City Inspector Mohammad Said was sitting, he entered into conversation with some subordinate Police clerk, who strongly advised him not to report that his wife had committed suicide but to say that be had killed her out of jealousy on account of her misconduct. He says this Munshi gave him far-(her reasons for adopting this course. and that, after he had gone upstairs, the City Kotwal also urged him not to be afraid, but to say that he killed the woman and that he would get off all right. He ascribed l is subsequent confession to the Magistrate to Police influence. He now denied having killed the girl, asserting that he was very much in love with her. He said, further, that she had attempted to commit suicide on other occasions. The defence evidence was" mostly directed to this point; but the telegraph signaller Tarak Nath Mukherji confirmed the accused s statement so far as it concerned him. Two physician?, Dr. Nogendra Nath Datt and Nanak Prasad Varna, a homoeopathic practitioner, gave evidence that they had attended the girl on two different occasion a after what appeared to be attempts on her part to commit suicide by poisoning. Evidence was also given of an occasion on which it was said the accused s wife had left her house declaring her intention of drowning herself in the Jumna river. The evidence of the accused s father, Benod Behari Mukherji, and of a neighbour, Nimai Charan Mukherji, suggests further that the girl was of a wilful and hysterical temperament, that she would resort to - hunger-striking and t) beating her head en the ground if her will was crossed in any way, I have set oat the evidence for the defence in the first instance because there is really no further evidence for the prosecution beyond that already indicated. A younger brother of the accused s was called, but he gave 60,evidence particularly relevant to the case, except that in cross-examination he supported the allegation for the defence as to previous attempts to commit suicide. The record before us suggests that the prosecution intended in the first instance to pro-dace certain further evidence, and more particularly that witnesses who were present at the discovery of the corpse were to be examined as to statements made by the accused at that time and as to a certain pantomime gone through by him, in illustration of the manner in which he had compassed his wife s death. It is not dear whether this part of the prosecution case was dropped because those responsible for the conduct of the case were satisfied that there was no substance in it, or because it was supposed that evidence of this nature could not be given without contravening the provisions of Section 26 of the Indian Evidence Act. The evidence is certainly not before us and I only allude to it because of this latter possibility. I think that the witnesses were entitled to depose to any actions performed by the accused in their presence and, after they had done so, the defence would have been entitled under other provisions of the Indian Evidence Act to put questions (if they deemed it advisable) as to any words used by the accused which accompanied or explained those actions. If any evidence of this sort was available I can only say that, in so difficult a case, I feel some regret that it is not before me.