Judagi Mallah vs Emperor

Adami, J.—Judagi Mallah has been found guilty by the Sessions Judge of Muzsaffarpur of the offence of murder and has been sentenced to death. That sentence comes before us for confirmation.

The appellant Judagi Mallah and Deonarain the deceased were cousins living at a village called Chimanpur. They were both boatmen and had been working in Calcutta up to a week before 12th December. Early on the morning of 12th December, one Hira came to Deonarain''s house to realise a debt owing to him. It appears that Hira, Judagi and Deonarain had a meal together in the morning at which they drank toddy and then went into the bazar and afterwards Deonarain proceeded to the ghat with Hira while Judagi came back. Doonarain accompanied Hira across the river and then came back. At sunset that evening Dasrath, also a relation, met Deonarain at the ghat and asked him where he had been and what he was doing and then accompanied him towards his home. On the way they first went to ODO grog shop and drank toddy and then proceeded to another shop belonging to Kanhai at a bandh siot '' far from the house of Deonarain. There Kanhai brought them toddy to drink.

Meanwhile Deonarain''s wife became disturbed at the failure of Deonarain to return and went to Judagi''s house which was close to her own and asked Judagi what had become of her husband. Judagi said he did not know but probably her husband would be returning. She went back and again after sunset wont to Judagi''s house and again made inquiries and then Judagi promised to go and see if Deonarain happened to be at the toddy shop. He set out and the next we hear is that, while Deonarain and Dasrath were drinking toddy from the pot which Kanhai had brought them, Judagi came up and took hold of the pot from which Deonarain was going to drink. Deonarain became angry at this action of Judagi and abused Judagi. Judagi seems to have returned the abuse and then a quarrel arose in the course of which Deonarain knocked Judagi down. Dasrath at the time tried to interfere and to separate the two men and then went off a few paces away to case himself.

While he was doing this he saw Judagi strike Deonarain with a knife in the throat. Deonarain fell down dead. Thereupon, according to Dasrath and other witnesses, Dasrath began to shout that Judagi had killed Deonarain, whilst also, according to the witnesses, Judagi ran about saying that he had killed Deonarain and was going to hang for it. Dasrath went off and met Niranjan and with him visited Domi, who is the leading man of the village and a panch as also a Municipal Commissioner. They were telling Domi what had happened when Judagi and his mother Mt. Kumri came along and stated to Domi that Judagi had committed the offence and they asked his forgiveness; in fact these two, according to the prosecution, confessed Judagi''s offence and asked Domi to save Judagi. Domi, however, told Dasrath and Niranjan that they must go off to the police station. These two went off, and, on the way, visited a man called Kashi Tewari, who also told them to go to the police station. The two men went to the outpost which, according to the Head Constable''s diary, they reached at midnight and told the Head Constable that Deonarain had been killed. The Head Constable, according to his own evidence and the station diary, deputed a constable Rajmahal to the police station which was half a mile away and the Head Constable and other constables started at midnight in search of the accused. According to the same diary at 12-30 the Head Constable with a constable set out for the police station together with Judagi the accused. Meanwhile just after Deonarain had been killed there had been the outcry which I have mentioned in the village which attracted several women to the spot where Deonarain was lying. One Lala Pasi (P. W. 11) said that he could not come because he was a leper, nor did his wife go there, prosecution witness 12. Dasrath had told Mt. Debia (P.W. 15) and she with Mt. Jamuni (P.W. 14) came up to the spot where Deonarain was lying. The aunt of Judagi, Mt. Dumri, had come �up as also the mother of Deonarain. Water was sent for and a lota was brought; from Judagi''s house and an attempt was made to give water to Deonarain. He, however, was dead. Then Mt. Sundari, Judagi and Kumri carried the body to the house of Mt. Sundari, the wife of Deonarain. At 1 a. m. the party composed of constables Rajmahal, Mohamad Sadique, Dasrath, Niranjan, Kumri, Judagi and others reached the police station and there Mt. Sundari laid an information which was recorded by the Sub-Inspector. In that information she told how her husband had failed to return before sunset and Judagi had said he was going to look for him, and then an hour afterwards after she had gone to sleep she heard a cry from Mt. Debia, calling her to run to the spot, and found her husband lying wounded and dead. She told how they carried the body to her house and how Judagi after carrying the body to the house had gone back to his own home. The information then stated that Judagi was dead drunk. Then the information proceeds as follows:

Now I have learnt; from Dasrath Sahai that at a pahar after sunset he was going along the bandh to his house when ho saw a struggle going on between my husband and Judagi on the bandh, full particulars regarding which will be stated by Dasrath himself. Therefore I think that Judagi has killed my husband.

The information then tolls of some quarrel which Judagi had with Deonarain. Judagi was arrested, but the Sub-Inspector tolls) us that until 1 p. m. the next day he was not in a fit state to give any statement owing to his drunkenness. He bad been arrested and he and his aunt Mt. Kumri were charged but the case was not prosecuted against Mt. Kumri.

The learned Sessions Judge agreeing with throe of the four assessors has found the appellant guilty of the offence of murder. He has believed the witnesses who had given evidence to the effect that they heard Dasrath directly after the murder saying that id was the appellant who had killed Deonarain and other witnesses who say that Judagi himself went about confessing his guilt. The learned Judge also relied on the evidence of Domi before whom a confession was made. The learned Sessions Judge has considered the point that in the saneha as recorded at first in the police outpost the name of the person who had killed Deonarain was not given.

He has come to the conclusion that though the Head Constable committed a very serious offence by interpolating the name of Judagi in the entry in the police diary, still, in his opinion, the omission of the name was merely due to carelessness. He believed that the name of Judagi was in fact given to the Head Constable at the outpost. It is really difficult to understand the entry in the station diary which purported to have been made at midnight. It is quite plain that the Head Constable was incompetent and one can see from his evidence that this view ought to be taken of his capabilities.

Mr. Patel, learned Counsel on behalf of the appellant, argues that up to 1 a.m. it had not been decided that the death of Deonarain was to be attributed to Judagi and that it was only when Sundari was in the course of giving her first information that it was suggested to her that Judagi was the man who had killed Deonarain. I have quoted above the passage from the first information relating to her knowledge which she acquired from Dasratb. In her evidence Mt. Sundari adheres to the statement that it was during the time that she was giving her information that she learnt from Dasrath how he had been going along the bandh when he saw a struggle which ended in the death of Deonarain. Mr. Agarwala the Assistant Government Advocate explains this as meaning that though she knew that it was Judagi who had killed her husband, she did not know until she was giving her information any details of the manner in which her husband met his death.

Now it may be that Sundari did not know who the actual rrmderer of her husband was; she would naturally be in a distressed state of mind, as she herself says, and paid little attention to what, was being shouted or what was being; said. As a matter of fact Dasrath himself says that he did not tell her and he; went off with Niranjan to Domi''s house; it is quite possible that Sundari did not realize what was said about Judagi for Dasrath had gone off and also Judagi had gone away and was no longer telling people that he had committed the murder. However that may be, we have the statement in the first information that it was Judagi who killed Deonarain and we have also the evidence which the learned Sessions Judge and the assessors in the Court below believed, that Judagi admitted that he had killed Deonarain and that directly after the killing of Deonarain Dasrath told the various witnesses that it was the appellant who had caused his death. There is no reason to disbelieve the story of Domi and the other witnesses. Domi is a man of some position and it is not shown that he is in any way interested except for the fact that he signed one of the kabalas which is said to have caused some trouble between Judagi and Deonarain. As a matter of fact that dispute between Judagi and and Deonarain had been compromised the day before. Nor does the fact that a man attests a document signify that that man must have a bias in favour of the person who executed the document. There is also no reason to disbelieve the witnesses who are not related to or of the same caste as Deonarain. There are witnesses of various castes and Lala who is a Pasi admits that he heard Dasrath calling out that Judagi had killed Deonarain with a knife. 1 see no reason to disbelieve either Lala or his wife Mt. Chulhia. Several witnesses were tendered by the prosecution but the defence did not cross-examine them. Kanhai, it is true, denies that he supplied Deonarain and Judagi with toddy but it is easy to see that it would be unsafe to admit that he did supply it since by supplying it at night and out of his house he would be breaking his license and would be liable to get into trouble.

A good deal has been made of the delay in lodging the first information. The occurrence was supposed to have taken place at 9 p. m. while the first information was not lodged till 1 a. m. Dasrath and Niranjan have explained how a great part of the time was taken up, but beyond this the probability is that there having been a drunken brawl the villagers were not anxious to make any report at first to the police, and it was for this reason that they went to Domi who was the leading man in the village. Even when Domi told them to go to the police station they went off to Kashi Tewari who is the next most important man there. He also told them to go to the police station and it seems that it was after this further instruction that they went off to the outpost.

Mr. Patel has said everything that could be said on behalf of the appellant and has made the most of the palpable fault in the station diary of the outpost, but I cannot see that this trouble with regard to the station diary really can affect the case considering the reliable-evidence we have of the guilt of the appellant. It is quite clear from the evidence that both Daonarain and Judagi had been spending the day in drinking-We know that Deonarain had visited at least two toddy shops in addition to the drinking of toddy at his own house. Judagi we do not know so much about in regard to his movements during the day, but we do know that when he came to the police station he was quite drunk, so much so that he was not fit to make a statement till 1 p. m. next day.

On the evidence we are quite convinced that it was true that the appellant caused the death of Deonarain. A knife with which the murder is alleged to-have been committed was found by the-Sub-Inspector in the house of Judagi in the room occupied by Judagi''s aunt Mt. Kumri. There was a mark on the handle which the Sub-Inspector thought to be blood but the Chemical Examiner has declared that it was not a mark of human blood. Whether this knife was used in the murder or it was another knife, it is clear from the medical evidence that sharp cutting knife was used and the carotid artery was cut causing death.

The first question which arises is whether the offence is the offence of murder or culpable homicide not amounting to murder. The evidence of Dasrath which has been believed is that a knife was used by the appellant. A man using a-knife and stabbing another man in the throat with that knife must be taken to have known and intended that the blow should be fatal. Mr. Patel argues that there was no intention of causing death because these two men were friends. Now even friends in a drunken brawl may cause each other''s death. Apart from the question of drunkenness, however, I should hold that the man who] strikes another man with a knife in the throat must know that the blow is so imminently dangerous that it must in all probability cause death and the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

The question then arises whether the fact that the appellant was drunk and also the fact that according to the evidence he had beer, knocked down by the deceased before he struck the blow can have the effect of reducing the offence.

We have been referred to various cases on the question of the effect of drunkenness in the gravity of an offence. These cases have been discussed in the case of Director of Public Prosecutions v. Beard [1920] A.C. 479. The conclusions which were drawn in that case by their Lordships were stated under three heads. The first head was:

that insanity, whether produced by drunkenness or otherwise is a defence to the crime charged. The distinction between the defence of insanity in the true sense caused by excessive drinking, and thee defence of drunkenness which produces a condition such that the drunken man''s mini becomes incapable of forming a specific intention, has been preserved throughout the cases. The insane person cannot be convicted of a crime; Felstead v. The King [1914] A.C. 534 but, upon a verdict of insanity is ordered to be detained during His Majesty''s pleasure. The law takes no note of the cause of the insanity. If actual insanity in fact supervenes, as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity, induced by any other cause. In the early cases of Barrow [1823] 1 Lewin, and Rennie [1825] 1 Lewin 75, Hoiroyd, refused to regard drunkenness as an excuse unless it had induced a continuing and lasting condition of insanity. But in Reg. v. Davis [1881] 14 Cox. C.C. 563 where the prisoner was charged with wounding with intent to murder, Stephen, J., thought (and I agree with him) that insanity oven though temporary was an answer. The defence was that the prisoner was of unsound mind at the time of the commission of the act, and the evidence established that he was sufferin; from delirium tremens resulting from over indulgence in drink.

Stephen, J., said:

But drunkenness is one thing and the diseases to which drunkenness leads are different things and if a man by drunkenness brings on a state of disease which causes such a degree of madness even for a time which would have relieved him from responsibility if it had boon caused in any other way then ho would not be criminally responsible. In my opinion in such a case the man is a madman, and is to be treated as such, although his madness is only temporary.... If you think there was a distinct disease caused by drinking but differing from drunkenness and that by reason thereof he did not know that the act was wrong you will find a verdict of not guilty on the ground of insanity.

To the same effect is a decision of Day, J., in Regina v. Baines {Taylor''s Medical Jurisprudence). The defence was that the prisoner was insane when the murder was committed. The evidence proved that the prisoner had on several occasions been under treatment for delirium tremens. Ho had one attack a week before, and another two days after committing the crime. Day, J., held that it was immaterial whether the insanity was permanent or temporary. The question was whether there was insanity or not, and the learned Judge ruled that if a man were in such a state of intoxication that he did not know the nature of his act or that his act was wrongful, his act would be excusable on the ground of insanity.

The second conclusion is:

that evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

The third conclusion is:

That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.

In my opinion the present case comes under the purview of this third conclusion. We have nothing to show that the accused was incapable by reason of drunkenness to form the intent necessary to constitute the crime.

The fact is according to the evidence, that after he committed the crime he ran about saying that he had killed this man and was going to be hanged. He said that he had done a wrongful act.

In the case of Mandru Gadaba [1915] 38 Mad. 479, it was held by Ayling, J., that ordinary drunkenness makes no difference to the knowledge with which a man is credited and if an accused knew what the natural consequences of his act were he must be presumed to have intended to cause them.

We are satisfied that in the present case the appellant had the knowledge and the intention which would make him liable u/s 302 and therefore therefore he is guilty of murder.

The last question is whether in the circumstances the extreme penalty should be imposed. In my opinion this is a case in which the extreme penalty is not called for. The death of the deceased was caused in the course of a drunken brawl and, though it is true that Judagi may have started the quarrel by trying to take the pot of toddy from Deonarain, we find from the evidence that Deonarain knocked him down and beat him and that Deonarain was the bigger man of the two. Taking all the circumstances together I would reduce the sentence from a sentence of death to a sentence of transportation for life.

Chatterji, J.

I agree. The first thing to consider is whether it was the accused who killed the deceased. The evidence of Dasrath is that there wag a quarrel between the accused and the deceased over a pot of toddy and the latter threw down the former on the ground and fisted him, and the accused, after having been separated by the witness, inflicted the fatal blow with a pointed knife into his throat. There is no suggestion of any enmity between this witness and the accused. It is said by learned Counsel for the appellant that the witness is himself the murderer and that he implicated the accused in order to save himself, out why should he kill the deceased, the feelings between the two having been cordial. In the next place, if really he was the murderer why would the neighbours of the accused Judagi support him in his statement that he at once shouted that the accused had killed Deonarain, especially when the witness Dasrath was a stranger to this place. I see no reason why the testimony of this man who has been believed by the learned Sessions Judge and three of the assessors, should be distrusted. In the next place his evidence as I have indicated is corroborated by neighbours who heard the shouting of the witness that the accused had killed the deceased. The depositions of Niranjan, Domi and Kashi fully corroborate this part of the case, besides sorrio of the neighbouring females. Domi Choudhury is a Municipal Commissioner of Lalganj and a person of some position and influence in the locality. The accused approached this Domi and said I have done some wrong but I may be excused." This statement of the accused in fact indicates an acknowledgment of the commission of the crime imputed to him. Lastly a knife which showed some signs of being washed off but had some marks of blood in the corner was found in an unusual place in the house of the accused.

The three points which are urged against the prosecution case are: (1) that there was a delay of about three hours in the lodging of information before the police; (2) that there was an omission of the name of the accused in the saneha by Dasrath and (3) that the widow of the deceased did not hear the name of the assailant till 1 a. m. when the first information report was lodged. All these points have been fully discussed by the learned Sessions Judge and carefully dealt with by him, and I am in complete agreement with the reasons given by him.

The only eyewitness, Dasrath, was not a resident of this village, and it is natural to expect that he would approach the residents of this place before going to the outpost or thana. Then when the matter was the result of a drunken brawl people would naturally hesitate whether it should be reported to the police, and it has further to be remembered that the young widow had to be looked after. The delay is not so serious as to throw any suspicion on the case for the eyewitness gave out the name of the assailant to independent persons some of whom admittedly hold responsible and respectable position in society.

The Head Constable, who entered the saneha at 12 midnight explains that he omitted the name of the accused by mistake. This explanation would seem to receive support from the subsequent entries of 12 a. m, and 12-30 p. m. In the former it is stated that the Head Constable started in search of the accused and in the latter that Judagi the accused was marched off to the thana. These entries clearly show that the name of the accused had been given to the Head Constable. It is, however, unfortunate that this man tried to make a false entry in the original entry in order to cover up his foolish mistake. Judagi''s name was mentioned at 1 a. m. when the first information was lodged at the thana and I fail to see why his name should not have been given an hour earlier. As to the third point, one must take into account the feeling of a young Hindu widow when confronted with the suddenness of the crime and the corpse of her deceased husband and it would be natural for her not to make any inquiry or be able to talk to others or to pay attention to what they were saying. The Sub-Inspector''s deposition shows that she was much distressed and found it difficult to make a statement when lodging her first information. I am satisfied on a careful consideration of the entire evidence that the deceased came by his death by the blow of the accused.

The crucial question in the case is whether the accused is guilty of murder u/s 302 or of culpable homicide not amounting to murder u/s 304. As laid down in Section 86, I.P.C., voluntary drunkenness by itself is no excuse for the commission of an offence. Though the accused may have been drunk at the time of the commission of the offence, the position will have to be considered from the aspect that ho was a sober man. The nature of the wound inflicted in the present case and the character of the weapon used are such that a sober man would know that the act is so imminently dangerous that it must in all probability cause death. The offence, therefore, comes, in my opinion, within the substantive portion (Clause 4), Section 300, I.P.C. But there are some extenuating circumstances in the present case which ought to be taken into account in considering whether the extreme penalty of the law should be imposed. The evidence of Dasrath is that Deonarain the deceased hit the accused Judagi first and threw him down. Then it must also be borne in mind that Judagi had no motive in causing Deonarain''s death. Both had gone to Calcutta together and returned from that place at the same time only a week before the occurrence. On that day both ate and drank together as friends, and if really Judagi intended to cause the death of Deonarain he would have waited a few minutes and inflicted the blow after the departure of Dasrath, who did not belong to that village and would have left him afterwards. The evidence of the Sub-Inspector shows that the accused was drunk when the accused was brought to him. He tried to record the statement of the accused but he was too drunk to answer. The act appears to have been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel while the accused was in a state of intoxication. Although drunkenness by itself does not excuse the commission of an offence, this along with other circumstances may well be taken into account in considering the nature of the penalty to be inflicted. In view of all the circumstances of the case, I agree with my learned brother that this is a fit case in which the accused should be sentenced to transportation for life.