[EXTRAORDINARY CRIMINAL JURISDICTION.] THE EMPRESS vs. MUKHUN KUMAR. Section 263, Code of Criminal Procedure-Verdict of Jury-Dissentient opinion of Sessions Judge-High Court. Per CURIAM.-A very large discretionary power is vested in the High Court by section 263 of the Code of Criminal Procedure. No fixed rules can be laid down for the exercise of that discretion in every instance; and the decision in each case submitted must depend upon its own peculiar circumstances. Per GARTH, C.J., and PRINSEP, J. (MARKBY, J., contra).—The rule laid down in Queen vs. Wazir Mundul, 25 W. R., 25, Criminal Rulings, goes too far. PRINSEP, J., (MARKBY, J., contra).—The law does not prevent a Sessions Judge from asking a Jury regarding the grounds for their verdict, and such a course is desirable in the ends of justice. See Queen vs. Sustiram Mundul, 21 W. R., 1. THIS WAS a HIS was a case tried by Jury in the Sessions Court of Burdwan. The prisoner was charged with the murder of his brother, and was acquitted by the unanimous verdict of the Jury. The Sessions Judge disagreed with this verdict and submitted the case under section 263 of the Code of Criminal Procedure for the orders of the High Court. No one appeared for the prisoner. The case was originally heard by MARKBY and PRINSEP, J.J.; and, as they differed in opinion, it was re-heard by the same Judges sitting with GARTH, C.J. The facts of this case will sufficiently appear in the judgments' delivered: MARKBY, J.: In this case the prisoner's brother was murdered in his own house in the night. The only person residing with him was the 1 GARTH, C.J., MARKBY and PRINSEP, J.J. 1877 June 23. MARKBY, J. 1877 v. MUKHUN KUMAR. MARKBY, J. prisoner. The prisoner himself, at an early hour, gave information THE EMPRESS of the murder to several persons in the village, including the village gomastah. The prisoner at first said that he did not know who had committed the murder, but on coming before Judgment. the gomastah he charged Hera Lall (a neighbour) and Ramanath with having committed it. This same Hera Lall states that, on the night of the murder, the prisoner came to his house, and, standing outside, called out that he had killed his brother, and asked Hera Lall to assist him in concealing the body. This is corroborated by Hera Lall's two sisters, who were in another house four or five cubits distant, and who say they heard what the prisoner said. Upon the evidence as recorded, there is, as it appears to me, a direct contradiction between Hera Lall and the gomastah as to whether Hera Lall reported this conversation to the gomastah immediately. But the Jury seem to have thought that the gomastah said that Hera Lall told him of this conversation afterwards. There is also, in my opinion, considerable improbability that a man who had committed a murder should communicate it to a neighbour in the manner described by Hera Lall. It was not unlikely that the prisoner, if he committed the murder, would ask Hera Lall to assist him in disposing of the body; but he would, in all probability I think, have gone inside the house to make this request, and would have taken care not to be overheard. The Jury, therefore, had, as far as I can see, reasonable grounds for disbelieving the story told by Hera Lall. The other evidence in the case consists of the confession of the prisoner and the evidence of the lad, Denonath, who says that, on the day preceding the murder, the prisoner borrowed from him an axe belonging to his uncle. There is no doubt that with this weapon the murder was committed. No one could have complained if, upon the confession thus corroborated, the Jury had convicted the prisoner, but they did not do so. They unanimously acquitted him. The question for me is whether I am to say the prisoner is guilty in the face of this unanimous verdict of the Jury. I have not heard the witnesses and cannot judge of their demeanour. The case, as I look at it, is essentially one for the considera 1877 tion of a Jury. It depends mainly upon whether the prisoner's confession ought to be accepted as true. There can be little doubt THE EMPRESS that, if the Jury rejected the confession of the prisoner, they did v. MUKHUN KUMAR. Judgment. so because they suspected it might have been made under the influence of the Police. With great deference to the opinion of the Chief Justice, I think the Jury had a right to consider MARKBY, J. whether it was probable that this confession was due to the influence of the Police, though there was no direct evidence of it. I think there would be great danger if this view of the matter were not considered open in every case. It is certainly not too much to say that the police possess great influence over the prisoners in their charge, and that they do sometimes obtain the most circumstantial confessions which are false. A remarkable case of the kind will be found in 7 W. R., Cr., 3, and I have now before me the recorded opinion of a Sessions Judge of great experience, that witnesses are threatened by the Police in nearly every case which is investigated. If witnesses are threatened, there can be little doubt that accused persons in custody are threatened also. I think, therefore, that the Jury have a right to accept every confession coming from persons who have been in the custody of the Police with caution, and with a regard to the probability of its having been made under the influence of the Police; and a Jury is, in my opinion, better qualified than I am to judge how far this caution is to be carried, and to determine whether a confession is to be accepted in any particular case. I do not, therefore, feel justified in saying that the Jury could not reasonably have arrived upon this evidence at a verdict of acquittal. With regard to the duty of Judges of this Court, in dealing with the verdict of a Jury referred under section 263, I agree that the words of that section leave the discretion of the Judges uncontrolled, and that we cannot lay down any fixed rules for the exercise of that discretion according to one's own conscience. At the same time, I agree generally with, and adhere to, the observations made by PHEAR and MORRIS, J.J., in 21 W. R., Cr., 4; by MACPHERSON and MORRIS, J.J., in 20 W. R., Cr., 73; by BIRCH, J., and myself in 20 W. R., Cr., 33; by MACPHERSON and MORRIS, J.J., in 25 W. R., Cr., 25; and by the 1877 V. MUKHUN High Court of Bombay. No doubt these observations cannot THE EMPRESS amount to more than an expression as to how the particular Judges who made them thought their discretion ought to be exercised. But dealing, as I am now, with a case of a unanimous verdict of Judgment. acquittal, I adopt those observations as my guide; and what they MARKBY, J. amount to is well expressed by the Bombay High Court, that we ought not, as a general rule, to interfere, under section 263, with the verdict of a Jury, unless it is perverse and patently wrong. Of course, I am here supposing that the verdict of the Jury has been arrived at legally and properly. In the present case, there is no suggestion of any impropriety or illegality in the verdict of the Jury. It seems to be impossible to admit the supposition that the Jury are not fit to perform their duty. They have declared unanimously that, in their opinion, the prisoner is not guilty; and I do not feel justified in saying that that verdict should not be recorded. As regards the power of this Court to order a new trial in a case referred under section 263, I do not wish to say anything, as I understand that course would not be taken in this case even if the power exists. Nor, as at present advised, am I prepared to recommend that Juries should be questioned by the Judges as to the grounds upon which they base their conclusions. GARTH, C.J. GARTH, C.J.:— After a careful consideration of this case, I have come to the conclusion that, notwithstanding the verdict of the Jury, we ought to convict the prisoner of murder. If he be guilty at all, there can be no doubt as to the quality of the offence. The deceased was barbarously murdered by some one; and the question, if question there be, is, whether the prisoner is the guilty man. Now the evidence in the case consists in great measure of a confession made by the prisoner himself before the Magistrate of Burdwan on the 1st of March last. From that statement, and from the admitted facts of the case, it appears that the prisoner was the younger brother, and that the two brothers lived together in one small house. Very near them lived a man named Hera Lall and his two sisters, named Sarasvatee and 1877 v. MUKHUN KUMAR. Bidhoo, with whom the prisoner and his brother seem to have carried on an illicit intercourse. The deceased, the elder brother, THE EMPRESS had consorted with Sarasvatee, the elder sister, for several months, when he left her for the youngest sister Bidhoo, still visiting the elder one occasionally. The prisoner, then a young man of seventeen or eighteen years of age, used to consort with the elder sister; and this community of intercourse appears to have led to quarrels between the brothers. On Saturday, the 24th of February last, both brothers were in the early part of the day at the market; and a dispute arose between them with reference to some pice which the deceased had given to the prisoner, and which the latter seems not to have accounted for. According to the prisoner's statement, he was severely scolded by his brother for concealing these pice, and on the following morning (Sunday) he, the prisoner, borrowed an axe from a neighbour, Jadoobun Tantee, and placed it beside the door of their house. On the evening of that day he had a conversation with Sarasvatee, who, he says, advised him to kill his brother, suggesting that, if the brother were dead, she and the prisoner might live together comfortably. The prisoner then states that he and his brother went to sleep as usual in the same house; and that, after his brother had risen at midnight to see an eclipse of the moon and had laid down to sleep again, he, the prisoner, took the axe and struck him with it three or four times on the head. His brother died without a word. He then went to the house where Hera Lall and his sister lived, told them what he had done, and begged Hera Lall to help him to bury the body. Sarasvatee went with him to look at it, and Hera Lall advised him to go to the gomastah of the village and say what he had done. He appears first to have gone to one or two other persons, and told them that his brother was murdered, without mentioning who had committed the murder; and he then went to the thannah with the peon early in the morning of the 26th of February, when he told the gomastah that Hera Lall and Ramanath (a friend of Hera Lall's) had murdered his brother. These circumstances are for the most part detailed in the prisoner's statement before the Magistrate, in what appeared to me the most natural and circumstantial manner, with these remark Judgment. GARTH, C.J. |