EMPEROR Vs. SABITKHAN BAHADURKHAN

JUDGEMENT

(1.) The case against the accused is that in concert with Honya and Umya he murdered his brother Mahammad-khan on or about the 25th September 1917 about 8 or 9 in the morning in the forest near Alkeri in Kanara. Honya and Umya were tried jointly with the accused by the Sessions Judge of Kanara and two assessors. Honya and Umya were found guilty upon their own confessions, but the accused Sabitkhan was acquitted, and the Government of Bombay have appealed against his acquittal.

(2.) The evidence before me is that which was recorded by the Sessions Judge at the joint trial. It establishes that Mahammadkhan was the owner of the most of the land and houses, only eight or nine in number in the village Alkeri which is situated less than a mile and a half from Kirwatty, Kirwatty being on the main road from Yellapur to Kalgutgy, and about twelve miles from the latter place. The relations between Sabitkhan and Mahammadkhan the deceased were very strained. Mahammadkhan had neither wife nor children, and was not disposed to support his brother Sabit and his family. Sabit consequently was obliged to work as a coolie in the Forest Department, and was continually importuning the deceased for assistance which was continually refused, and although the two brothers lived in the same building they did not associate and all their intercourse was unfriendly. On or about the 24th of September 1917, the deceased who was suffering from pains in his stomach decided to go to Kalgutgy for treatment and requested a neighbour named Bussia in the presence of another inhabitant of Alkeri named Bay Munna to accompany him as Bussia was also suffering from pains in the stomach. On the 25th of September the deceased left Alkeri in the morning alone. At all events, he was never seen after that time at Alkeri. He had left a bin of rice in front of his house upon which he had asked a neighbour Day Munna to keep an eye saying he would be back in a few days. About a fortnight after his departure the accused began to make free with the grain. When Day Munna asked him what he was doing with the rice Sabit asked what business it was of his. According to witness Juncu, Sabit said when asked that Maharamadkhan would not be back soon and on several occasions gave rice from the bin to Honya and Umya the convicts at the first trial. Three months after the Ganesh Chaturthi, the accused told Boojang, a shop-keeper of Kirwatty, that Mahammadkhan had gone for medical treatment to Miraj. He began after the crops had bean got in to ask the tenants of Mahammadkhanto pay their rents to him. Four months after the departure of Mahammadkhan, namely, on the 4th of February 1918, the Eanger of the forest having heard that Sabit was trying to collect the rents of Mahammadkhan sent for him and asked him if he had heard from Mahammadkhanand what had become of him. He replied that Mahammadkhan had gone to Miraj and that no letter had come. Later in February at Kirwatty when Postmaster Wycunt delivered him a letter in the presence of Anant, a shopkeeper, Sabit tore it open and asked Anant to read it to him. Both Anant and Wycunt depose to the contents of the letter. Their versions are not verbally identical, but are to the same effect. The letter which was unsigned and undated purported to come from Mahammadkhan from Belgaum, and stated that he was getting better and proposed to go to Miraj. It directed Sabit to collect the rents and pay the assessment and said that if Mahammadkhan wanted money he would let Sabit know. The letter was returned to Sabit. Three of the witnesses who lived at Alkeri deposed to Sabit demanding rent from them and stating that he had a letter from Mahammadkhan. At the end of March the convicts Honya and Umya disclosed a spot in the forest between Alkeri and Kirwatty in which the remains of Mahammadkhan were buried. It was found that his ribs had been broken. Bussia of Alkeri, who has already been mentioned in connection with Mahammadkhan s proposed journey to Kalgutgy, stated that he had been persuaded by Sabit not to go. with Mahammadkhan, and that on the day following, j. e., the 25th September, he had, while driving cattle towards Kirwatty near the village tank, seen Sabit together with the two other accused taking the path from Alkeri to Kirwatty, and half an hour later had seen Mahammadkhan take the same path. The muster roll kept by the Forest Officer shows that Sabit was absent from his work on the 25th and following days of September. The learned Judge says he has no reason to disbelieve Bussia, but he doubts if Bussia could remember exactly the day on which he saw Sabit and the two convicts go along that path because there was no impressive concomitant circumstance. There is no doubt that Mahammadkhan never wont to Belgaum and never reached Kalgutgy and that the letter opened by Sabit in Kirwatty is a false document which might explain the absence of Mahammadkhan and justify Sabit s attempts to collect his rents. If there were no other evidence in the case, and if the evidence of Bussia were discarded, it seems to me there would still be a strong case of suspicion against Sabit as being concerned in the murder of Mahammadkhan.

(3.) The Sessions Judge, however, had before him not merely this evidence, but also the detailed confessions of Honya and Umya (who had reasons for disliking Mahammadkhan ) who state that Sabit participated with them in the murder of Mahammadkhan and engaged their services on a promise of payment in grain, and that the body was buried with a spade provided by Sabit, the spade which was found in Sabit s house after the confession. These confessions must be taken into consideration against Sabit according to the provisions of Section 30 of the Indian Evidence Act. But the learned Judge seems to have been afflicted by a certain paralysis of his judicial faculty owing to a perusal of reported cases which lay down that a man should not be convicted upon the uncorroborated confession of his co-accused, and reading these cases in conjunction with an observation occurring in the judgment of the Calcutta High Court in the case of Emperor v. Lalit Mohan Chuckerbutty (1911) I.L.R. 39 Cal. 559, 588, to the effect that "the Court can only treat a confession as lending assurance to the other evidence against a co-accused", he considers himself unable to make use of the confessions at all, because there is not a perfect enough case against the accused without them although as he states he has no doubt whatever that the accused committed the murder. He puts it thus : "It is not enough that the other evidence should support the confessions, It is the confessions which must support the other evidence which must afford a basis broad enough and firm enough to sustain a conviction if the superstructure be steadied by some adventitious and subsidiary prop , such as the confessions." The learned Judge in the above quotation from Lalit Mohan s case has omitted the concluding words: "Thus to illustrate my meaning, in the view I take, a conviction on the confession of a co-accused alone would be bad in law." The rule which the learned Judge conceives to be binding on him is affirmed by Jackson J. in The Queen v. Chunder Bhuttacharjee (1875) 24 W.R. 42 (Cr.) 43, in this form "that, when, as against any such person, there is evidence tending to his conviction, the truth or completeness of this evidence being the matter in question, the circumstance of such person being implicated by the confession of one of those who are being jointly tried with him should be taken into consideration as bearing upon the truth or sufficiency of such evidence.". It is also affirmed in the judgments of Jackson and McDonell JJ. only out of the Full Bench of five Judges in Empress v. Ashootosh Chuckerbutty (1878) I.L.R. 4 Cal. 483, 48 , 491 where the third question referred was: "whether such a confession made by one such person may be used as the basis of proof of the offence charged as against the other, and if corroborated, may sustain a conviction ; or whether it is necessary, in order to sustain a conviction, to use such confession only as itself corroborative of other independent evidence." The answer of the Chief Justice to this question was : "If the confession is corroborated by other evidence, I do not think it matters whether, in proving the case at the trial, the confession precedes the other evidence, or the other evidence precedes the confession. The course of proof in each case is a question of convenience for the prosecution ; and they have a right to bring forward the evidence in any order they may think fit."