King-Emperor vs Karu Gwala

Scroope, J.—This is a reference u/s 307, Criminal P.C., by the Sessions Judge of Patna. The accused Karu Gwala was charged u/s 302, I.P.C., with having murdered one Sahebzada Singh of Raghopur in Bakhtiarpur P.S., between the villages Dumauli and Harnauth on the Bakhtiarpur-Bihar road and he was also charged with abetment of murder and robbery in that he helped one Birbal Dusadh to rob and murder Sahebzada Singh. Birbal was also tried on charges of robbery and murder of the said Sahebzada; and the jury, by a majority of five to two, found them both not guilty. The Sessions Judge of Patna has accepted the verdict in the case of Birbal but has disagreed with the verdict in respect of Karu holding that it is perverse and that Karu was guilty both of robbery and murder: he has accordingly referred the case to this Court.

The grounds of reference are set forth in his charge to the jury. The sum and substance of the case for the prosecution is that the deceased Sahebzada Singh and his cousin Sitaram had a joint business in bamboos and that the accused Karu, who was formerly a trolly-man on the railway, entered the service of Sitaram last Chait or Baisakh as a cartman.

On 12th June last Sahebzada set out to sell bamboos taking his own cart and two carts of Sitaram. Danu Munshar and Karu Gwala drove those two carts; Sahebzada and his son, Jagat Narain Singh, were in. Sahebzada''s cart, and there was also a fourth cart belonging to one Sukbdeo Singh in the party. They disposed of the bamboos at various places and by the time they left Bihar on their homeward journey to Raghopur on the evening of the 19th June, only Sahebzada Singh and; Karu Gwala were left each driving a cart and the former had with him Rs. 163-3-0 as sale proceeds, utensils, a quilt and a basket. Jagat had left the party at Bihar to accompany Sitaram Singh who was going to a barat in Gaya District; Danu: and Sukhdeo had gone back to Raghopur. From Bihar the party went north to Shahpur and Bhagan Bigha, and there is direct evidence showing their movements as far as the latter village.

As to what happened subsequently after leaving Bhagan Bigha, we have to rely on Karu''s confession which was recorded on the 22nd June by a First Class Magistrate at Barh. According to this confession, Karu met the other accused Birbal on the evening in question at village Shahpur which is about half a mile south of Bhagan Bigha; Birbal made some enquiries from him as to whether he had got his pay from Sahebzada: on Karu saying he had not got it, Birbal advised him to rob and kill Sahebzada and to tell the people of Raghopur when he arrived there that the cart had been stopped by robbers who had murdered Sahebzada and taken his money. Having primed Karu with the details of a story on these lines Birbal joined the carts at a bridge north of Bhagaii Bigha station and got on to Karu''s cart, whilst Sahebzada Singh was sleeping on the other cart. Having gone some distance, they got down from their cart and Birbal got on to Sahebzada''s cart, and tried to throttle Sahebzada. Whilst he was doing so, he called out to Karu that Sahebzada had recognized them and that there was nothing for it now but to kill him. Karu then got on the cart and held Sahebzada''s hand while Birbal choked him. The latter then took the moneybag from Sahebzada''s waist and told Karu to go to the thana and lodge a complaint of robbery. Karu agreed to do this. Bubal also took away the utensils on Saheb-zada''s cart and set out saying he would go home via Misi where his father-in-law resided. Karu accompanied him. Close to the Harnaut station Birbal sent him back to give an alarm which he did at Ropaspur, south of Harnaut, and next morning he met the chaukidar of Murfoari, who took him to Bakhtiarpur police station, where he lodged information.

The case against Karu then turns entirely on his confession made on 22nd June in the afternoon. The accused retracted the confession in the lower Court and again in the Sessions Judge''s Court saying that he had been induced by the police to make it.

A remarkable feature about this case is that it was the accused himself who gave the first information in the case practically without any delay at all. It was recorded at 8 a.m. at Bakhtiarpur police station in the morning after the murder, and there Karu gave an entirely different account of what had happened that night. He there stated that when they were driving their carts on the Bihar-Bakhti-arpur road in front of Murhari village six men armed with lathis accosted them, made him get down from the cart and held him, whilst three men attacked Sahebzada Singh and robbed and murdered him and also took away two rupees which Karu had with him.

Now, if Karu had a hand in the murder, then the prompt and detailed nature of the first information report shows that he was a criminal of considerable resource and coolness, yet, if the confession is to be accepted, we find that a couple of days later he loses his nerve entirely and makes a clean breast of the whole affair: there is no indication from the prosecution as to what led him to do so. On the other hand, it is not disputed that he was 58 hours in the custody of the police and under arrest for about 24 hours. It is impossible in my opinion, to disassociate this confession from his long period in police custody and the hope that he would be made an approver: circumstances, it must be remembered, were, black against him as he was the last man seen in the company of Sahebzada.

Another suspicious feature about the confession is in the matter of the three utensils, which, according to the prosecution Sahebzada took with him in the fatal journey and which were, according to the prosecution case subsequently discovered in the house of Birbal''s mother-in-law, Nothia, one of them actually bearing the name of Sitaram Singh. If these lotas were with Sahebzada Singh on the night in question, then there can be no doubt that the confession is amply corroborated. (Then dealing with the evidence as to the depositing of these utensils the judgment continued) The prosecution evidence which goes to prove that Birbal actually deposited the utensils in the house of his mother-in-law on the morning after the murder is not convincing, as it comes from the Dusadh witnesses all of whom were suspected in the case (I refer to P.Ws. 1 to 3).

A third difficulty about the confession is that according to the Sub-Inspector''s map the place pointed out by the accused Karu as the scene of the murder is just in the vicinity of mile 10 of the railway line from Bihar to Bakhtiarpur, yet the Sub-Inspector found the two bullock carts with Sahebzada''s corpse on one of them between telegraph posts 7/18, and 8/1 between the seventh and eighth miles, that is practically at the eighth mile. So to accept the confession as true necessitates believing that the bullock carts travelled nearly two miles after the murder. It cannot be believed that Birbal and Karu would have travelled along in the bullock cart with the corpse obviously they would decamp as soon as the murder was committed. This is a point which is not referred to in the charge of the learned Judge; but it seems to me a remarkably strong circumstance against accepting the confession. The place where the corpse and the carts were found fits in better with the first information according to which the occurrence took place in the vicinity of Murhari village. According to the map in the case Murhari is much nearer to this spot than the place of occurrence according to the confession.

Another remarkable feature is that the bullocks were found by the Sub-Inspector tied up to the cart. Obviously the murderers could not hive tied them up. According to the confession the murder took place when the carts were in motion.

The evidence of Rup Narain Singh (P.W. 7), through whom it is sought to prove the meeting of Karu and Birbal at which the murder was planned does not convince me. He appears to be a chance witness; and he has made an important addition in his evidence in the Sessions Court to that which he gave in the lower Court. (This is referred to in the charge to the jury by the learned Sessions Judge).

Moreover, it is hardly likely that Sahebzada would have allowed his servant to go home to Sahpur and thus remain alone in charge of the two bullock carts. The murder must have been deliberately planned it can hardly have been arranged at a chance meeting like this in Shahpur as the confession requires us to believe.

The learned Judge thinks that the confession receives important corroboration from the fact that in the first information Karu makes no reference to Sitaram''s departure to the Gaya District for a barat, and he thinks that the reason for this suppression is that he wanted to give as an excuse for not informing the chaukidar directly that he had to go to his master at Raghopur first to inform him about the occurrence But, as a matter of fact, the first information does refer to Jagat Singh going away to join a marriage party. It is true there is no reference to Sitaram; but it would be a natural impulse for Karu, assuming he had not a hand in the murder, to go to Sitaram''s house in Raghopur. He could hardly have been expected to go right away down to the Gaya district to search for his master; and, this would have made the circumstances still blacker against him.

One would naturally expect him to go straight to his master''s house; there must have been other occupants of it whom he could have informed. There is some contradiction as to where Jagat Singh left the party. According to his own evidence he left at Bihar; but according to Dahu Singh when they arrived at Gurambha Jagat was not in the party, and the same conclusion would follow from the evidence of Arjun Kberi (P.W. 24) of Hasanpura. Besides, as to his not informing the chaukidar, he did as a matter of fact give information immediately after the occurrence to Chatur-bhuj Mahto of Rupaspur, which is a village half a mile from Murhari according to the witnesses.

The learned Sessions Judge is impressed by the fact that Sitaram did not go to Murhari but went first to Rupaspur. The map in the case is not sufficiently clear to elucidate the precise topographical significance of his movements in this respect; but according to Chaturbhuj, Murhari is only half a mile south of Rupaspur and the place of the occurrence as located according to the first in formation, and according to the evidence showing where the body was found, is not altogether inconsistent with his going to Rupaspur first. Indeed if the murder took place at the spot where the body was found by the Sub-Inspector, there was nothing unnatural in his going to Rupaspur first; that village apparently fell on the road to Raghopur if somewhat on the east of it. Moreover, the story in the confession that he went back to Rupaspur to raise alarm after arriving near Harnaut, because he had forgotten to do so seems again contrary to ordinary human probability.

Moreover, there was no failure on his part to give information about the murder. He informed Chaturbhuj about it in the middle of the night or towards the morning at Rupaspur as well as Jograj Mahto (P.W. 12) at Murhari, and he asked the latter to show him the chaukidar''s house. Jograj said he could not; but at Harnaut the chaukidar, who had already heard of the murder, met Karu and Karu told him about it. This was two gharis after sunrise. So he apparently had told three persons by that time. I, therefore, do not think any inference adverse to him can reasonably or safely be drawn from a consideration of his movements between the murder and first information at the thana which he gave at 8 a.m.

Lastly, I refer to the medical evidence. The important part for the purpose of this case runs as follows:

No marks of injury in the neck of the deceased could be observed after careful and minute examination, except the one mentioned at the lower right eye lid. This did not indicate any marks of violence. It may have been a birth-mark on the deceased.

The one incriminating circumstance in the medical evidence is that the tongue was found slightly set between the two sets of teeth; found the conclusion of the Assistant Surgeon is non-committal. He said:

I cannot say that death could not have been caused by suffocation or throttling. Neither can I say that it could have been caused.

Even, allowing for the state of decomposition in which the body apparently was, yet, having regard to the medical officer''s own evidence that bruises cannot disappear in a decomposed body, the medical evidence is unsatisfactory. Undoubtedly the deceased was murdered, and the medical evidence ought to have shown how he met his death; instead of that it practically leaves us in the dark; but the important point that emerges is that it is of very little help in the matter of confession.

The result then is, that I find that the difficulties in accepting this retracted confession on which the whole case must turn are too great and I am bound to say that on a careful consideration of the whole of the evidence I do not consider that the verdict of the jury is perverse or unwarranted or even involves an opinion that a prudent man would not give having regard to all the facts and circumstances of this case. The reference cannot, therefore, be accepted and must be discharged, and the accused must be acquitted and released at once.

Adami, J.

I agree.