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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 81 of 155)
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not surprised to find that witnesses required for the defence did not attend.

The Judge's record is silent as to the 13th of January.

The Judge's record for the 14th of January is so comical that it
would be difficult to believe that it was the record of a criminal trial, if
the record was not before us. It opens as follows :

" Trial resumed. Present as before.

"Eeported that Madho Singh cannot be found ; also that the pat-
war cannot be found. Fresh summons for the patwari through [261]
Collector under docket. Bisseswar Singh, called by Court after summons,
states on solemn affirmation. Discharged. Note, that the defence ntate
that io was another Bisseswar Singh they wanted.

It appears there are two Bisseswar Singh of Dharanagar one the
employee of the pheridars, know in as Kanja Bisseswar Singh ; the other,
the alleged purchaser of the Kulwara, &c. Amir Singh tenders any
information that could be got from the latter, who is the man intended by
the defence," and Amir Singh is again examined apparently by the Judge.

So anxious was the Sessions Judge to get hold of a witness for the
defence, that he orders a warrant to issue for the arrest of a Bisseswar
Singh without taking the trouble to ascertain that he is issuing it against
the right man. When the wrong man is brought before him and examined,
the Sessions Judge bethinks himself of enquiring of the defence as to who
was the Bisseswar Singh who was required as a witness for the defence, and
as the right Bisseswar Singh was not present, he recalls Amir Singh to give
the evidence which he supposes the defence intended to obtain from their
own witness. Then one Wahaj-ud-din is examined by the Sessions Judge ;
but as apparently he could not give the information which the Sessions
Judge required, the Judge makes a note : " Amir Singh offers to give infor-
mation," and Amir Singh is accordingly further examined. Then comes
the record of the evidence of apparently the wrong Bisseswar Singh. Then
the Sessions Judge further cross-examines the prisoners Jhulai and Raj-
want Singh on matters of their defence. Then Jawahir Lai is re-called,
and the record for the 14th of January closes with some further examina-
tion of Amir Singh.

[ la 12 A.W.N. (1892) 83 (89) for " Dasmi", we fiad " Dhuni." E.D.]



On tha 15th of January Jawahir Lai is further examined. 1892

On the 16th of January Umar Khan, a constable of Baragaon, was JUNE 7.

the first witness called. He was a witness for the prosecution. He said

that Sambhal Singh's body was thin, and that he surmised that Sambhal APPBL-
Stngh had been ill because his hands and feet were swollen. LATB

[262] The next witness for the prosecution was Bhairo Sankar, an CRIMINAL.
Inspector of Police. He said " Bajwant Singh from the outset said he
had seen the killing of Sambhal Singh, but he did not commit himself to
naming any other person as having witnessed it. Jhulai, Ahir, declared
he haj seen it, but ha also refrained from disclosing any name as that of
a spectator ; " and later on " Rajwant said he saw Amir killing Sambhal ;
Jhulai, too, said he saw Amir killing Sambhal."

Brij Narayan is then called and examined, and the trial adjourned to
the 18th of January.

On the 18th of January Jawahir Lai was put in the witness-box for
cross-examination. The prisoners declined to cross-examine him. He
had said nothing to implicate them. On the contrary, his evidence so far
had been damaging to the prosecution. When the prisoners declined to
cross-examine Jawahir Lai, the Sessions Judge proceeded to examine him
further. In the course of that examination Jawahir Lai said : " No
formal record was made of the time of the visit of Bhukan Das and
Hargobind Singh at the outpost. I assign for their visit the hour of 7
A.M. at a guess the best I can ;" and later on : " I have no personal know-
ledge that Sambhal had been ill. I wrote that he had been suffering from
fever because Amir Singh said so. Amir Singh did not try to conceal
: this from me. When I was investigating, my belief was that when
Bhukan Das and Hargobind came to the outpost Sambhal Singh was alive.
I did not think that Bhukau Das and Hargobind could have got back in
time to see the death of Sambhal Singh. The time of Pryag's arrival was
written down, (entered as near 8 A.M., see special diary)." Jawahir Lai
further said : "I went to the scene of the murder through Karoma. I met
Bahadur Singh and Eajwant Singh on the Panchkosi road in the limits of
mauza Ghatoli, about half a kos from Karoma and rather less than a mile
from the outpost." Then the Sessions Judge of his own motion calls
Pryag Singh, the son of Sambhal Singh. As to the calling of Pryag Singh,
the Sessions Judge's record shows the following : "Called by Court (sud-
denly [263] and with precautions against any communication reaching

Pryag Singh said that as he was going back from the Harahua chauki
with Jawahir Lai, they met five men. " Those men were Bahadur
Singh, Rajwant Singh, Jhulai, Ahir, Bhukan Das, and Hargobind Singh.
They came from the direction of Karoma. I pointed them out to Baha-
dur (Jawahir) Lai as the men who had killed my father. We had two
constables with us. One was Umar Khan, the other was Khairatit The
jamadar ordered all these five men to go to the chhaoni and stay there, as
there was a charge against them ; " and further on : " We went on, I
urging the jamadar not to give them a chance of escape, as murder had
been committed by them. I swear that there were five and not two men
so met by us."

Then Umar Khan is recalled : " (Every precaution has been taken
to prevent communication)." He said that he followed Jawahir Lai to
Gaharwarpur, walking about a gunshot distance behind, and that he had
no recollection of any one being met on the road and turned back by the
head constable. Then there is this note of the Sessions Judge : " (Note.

A VII-68


1892 Umar Khan and Pryag are confronted the latter is made to repeat
JUKE 7, his story and directed to look straight into the constable's face, the latter

stands the ordeal : Pryag Singh does not do so satisfactorily ").

APPEL- The Sessions Judge omits to mention in his record the ordeal of the

LATE pipal leaves. Jawahir Lai was then recalled, and said : " It will be found

CRIMINAL, recorded that I met Bahadur Singh and Raj want Singh. I was asked

by the Inspector, and I told him of it." He also said " Pryag is not

11 A. 242- correct as to the spot where I met these men. It was 400 or 500 paces

12 A.W.N. further east, towards Harahua. Pryag is wrong in saying there were
(1892) 83. more than two men." We believe Jawahir Lai; he is, in our opinion,

truthful witness.

The patwari is then called, and then comes the second witness called
for the prosecution, who professed to have seen the murder committed.

[264] The first of the four professed eye-wifcnesses for the prosecu-
tion was Amir Singh. The next was Garib. If Garib's evidence is true,
the four appellants and Bahadur Singh killed Sambhal Singh. According
to Garib, he and one Sital Pande went together to Gaharwarpur. He says
that one of the zemindars gave the order for Sambhal Singh to be struck.
He is contradicted by Sital Panda as to what was going on and as to who
was there when he arrived. He contradicted part of the evidence which he
had given before the committing Magistrate, and then veered round and
said that the evidence which he had given before the Magistrate was
correct. He flatly contradicted the evidence of Amir Singh, and on this
point we believe him. He said : " I saw Sambhal Singh two days before
his death at his house, the one to the south of Eamdin Singh's field. Ht
was on his cot ; he had fever. I did not see bis hands. I saw his feet :
they were swollen." And later, in reply to the Sessions Judge, he said :
Sambhal had strong fever when I saw him."

Then Jawahir Lai was recalled. Then Sheodhan Singh was called by
the Sessions Judge and produced a number of records. Then came the
third eye-witness for the prosecution, namely, Sital Pande, who was called
on the 19th of January. According to him Sambhal Singh was killed by
the appellants and Bahadur Singh. His evidence does not agree with
that of Garib as to what was being done and as to who was there when
they arrived at Gaharwarpur. In cross-examination he denied that he
lived at Eameshwar. A question as to where a witness lived is a per-
fectly relevant question. The cross-examination on the point was to his
credit, and also, no doubt, was suggestive that, he was not at Gaharwarpur
on the morning in question.

He was further asked : "Have you a concubine in Kameshwar, or a
second wife ? That question was disallowed by the Sessions Judge. It
was a relevant question, and arose on his denial that he lived in Kameshwar,
This is what the Sessions Judge says in his judgment as to that question,
which he disallowed : " It is not always that a Judge is strong enough to
peremptorily order a pleader to stop. This had to be done more than
once in this trial. [265] I give an example " Sital Pande, who gives his
age at 60, who is apparently close on 70, was asked if he was nob keeping
a woman. The questioner had not one title of evidence or probability on
his side. An indignant negative, however, would not wipe out, amongsfe
those who form his little world, the recollection that the poor old man had
been asked that insulting question in public, and the recollection of it will
not tend to make others more willing to risk being similarly insulted. Can
we be surprised that so many actual witnesses find it more convenient to
say that they were looking the other way, or that they were elsewhere ?'



Ib would possibly have been more conducive to the interests of justice if 1892
the Sessions Judge, instead of indulging in all that rhodomontade, had JUNE 7.

allowed Sital Pande to answer the question and express for himself an

indignant negative, had he chosen to run the risk of doing so. The Sessions APPEL-
Judge, before he disallowed the question, might at feast have asked LATE
the pleader if there was serious foundation for it, or he might have QRIMHUI,

refreshed his memory by looking at the committing Magistiate's record,

where he would have found that this was what Sital Pande's friend, 14 A. 242-
Graib, the witness of that name for the prosecution, had said on the 12 A.W.N.
subject: " I know Sital Pande of Ausanpur. His residence is in Ausanpur, (1892) 83.
but he lives in Bameshwar. Sometimes he lives in Ausanpur. In
Bameshwar there is a kept-woman of Sital, and in Ausanpur his wife. In
Ausanpur there is one and a-half bigha cultivatory holding of Sital and
his brothers. He has shaikmi cultivation both in Rameshwar and
Ausanpur. Sital, lives apart from his wife and sons. He lives in Bamesh-
war. His house in Bameshwar is less than a mile from his house in
Ausanpur. There is a river between. Sital's sons take care of their
mother, and Sital, too, assists her." It is said on behalf of the appel-
lants that there pleader endeavoured to get that information from
Garib in the Sessions Court, and that he was stopped by the Sessions
Judge and told that Sital Pande was the proper person to whom such
a question should be addressed. On that allegation we express no

The fourth and last eye-witness for the prosecution was next called.
He was Ajudhia Singh, a son of Amir Singh. According [266] to him one
of the zamindars and Bhukan Das gave the order to strike Sambhal Singh,
and, according to him, the appellants and Bahadur Singh killed him.
Ajudhia Singh had almost as vital an interest in this case as his father,
Amir Singh, had, and consequently his evidence must be regarded with
caution. Ajudbia Singh had made a report to the police on the morning
of the 13th of September. According to the cheque-receipt this is what he
reported : "Gobind Das is constructing a ridge by demolishing my manger.
My uncle, Sambhal Singh, and I warned them not to do so. On this
Sambhal Singh and I were beaten to-day at 7 A.M. My uncle, Sambhal
Singh, has received serious injuries and is unable to come ; I have there-
fore come to make the report." The cheque receipt gives the names of
the persons then accused by Ajudhia Singh as "Gobind Das, Bhukan Das,
Hargobind Singb, and Buddhu Keori, residents of Karoma." That report
made no mention of two of the prisoners, appellants here, whom Ajudhia
knew perfectly well, and who, at the Sessions trial, he swore took part in
the murdejc namely, Raj want Singh and Jhulai: The four men whom
Ajudhia did name in his report were the men whom he most probably
would have named if this is a case of sesari-muqadama. When Jhulai was
examined before the Magistrate on the 20th of September 1891, be said
that he had asked Amir Singh why he was beating Sambhal Singh with a
lathi, that Amir Singh asked him to give evidence to the effect that "at
the request of Gobind and Bhukan, Buddhu, and Hargobind had killed
Sambhal. I refused to give false evidence : hence he has charged me."

If the evidence of Jawahir Lai is true, and we believe it, it is nearly,
if not almost impossible that Bhukan Das or Hargobind Singh could have
been present when Sambhal Singh was killed. Jawahir Lai evidently did
not belive that those men were present.

The record of the report of Pryag Singh was not drawn up at the
time he made it or until later in the day, and by that time Amir Singh


14 All. 267





141. 242-

12 A.W.N,
(1892) 83.

had accused Jhulai as a party to the murder, and accordingly in the head-
ing of the report the name of Jhulai is mentioned in the list of names of
the accused. But in the body of the [267] report no mention is made of
Jhulai. According to the prosecution, Pryag Singh was not present when
his father, Sambhal Singh, was killed.

After the examination of Ajudhia had been concluded, the prisoner
Kajwant Singh was again examined by the Sessions Judge. The proceed-
ings of the 19th of January closed with this note by the Sessions Judge :
" The defence must have amole time to consider what witnesses, if any,
they will have examined. To-morrow the Court will continue closed, as
it will be a day of National mourning. The trial is adjourned to Monday,
21st January 1692." It is only those who were responsible for the de-
fence of these men charged with the crime of murder, or those who know
what such a responsibility is, and what had takan place at this trial, who
could fully appreciate the irony of that order. All the witnesses for the
defence whom the Sessions Judge could get hold of had been called and
examined by him, and what they had deposed had been declared by them
" with a full knowledge of the provisions of section 194, Indian Penal

The defence elected to call no witnesses except one to produce some
documents. Then follows this note of the Judge : " Reported by the
Judge's record-keeper that the record of the case 'Babu Lai, Lohar, versus
Amir Singh ' is not traceable. Amir Singh offers to give any information
required. "

Then the defence call Gauri Shankar to produce documents, and
then Amir Singh is recalled. Some documentary evidence was then read,
the Government Pleader summed up the case for the prosecution, and Mr.
Howard on behalf of the prisioners addressed the Court and the assessors.
The Muhammadan assessor gave it as his opinion that the prisioners
were guilty of the offence charged under section 302. Indian Penal Code.
The two Hindu assessors were of opinion that the prisioners were not guilty,
one of them being of opinion that Amir Singh killed Sambhal Singh " to
land a false charge against the zemindars." The other assessor was of
opinion that Sambhal Singh had died a natural death. The opinion
of the assessors was recorded late in the afternoon of the 21st of [268]
January 1892, and before 5-20 P.M. of that day the Sessions Judge
had passed sentence of death on each of these four appellants. Before
referring to the question as to what the Judge was bound by the law to
do before passing sentence, we shall very briefly state our conclusions on
the facts of this case.

On the part of the prosecution there were only four alleged eye-
witnesses of the murder to support the case that these appellants had
committed the murder. Those witnesses were Amir Singh, his son
Ajudhia Singh, Garib, and Sital Pande. The two latter on some points
which are not immaterial contradicted each other. Garib further contra-
dicted evidence as to Ajudhia Singh which he had given before the com-
mitting Magistrate and then veered round to that evidence again. Garib
contradicted the evidence of Amir Singh as to the state of health of
Sambhal Singh, and in that respect supported the evidence for the case of
sesari muqadama set up by the defence.

Amir Singh's evidence as to the state of Sambhal Singh's health is
rendered untrustworthy by the evidence of Jawahir Lai and Umar, wit-
nesses for the prosecution.



The evidence of Jawahir Lai, in our opinion, proves that; the evidence of 1892
Amir Singh, Ajudhia Singh, Garib, and Sital Pande as toHargobind Singh JUNE 7.
having taken part in the murder is false evidence. The report of Ajudhia
Singh makes it exceedingly doubtful that Raj want Singh or Jhulai were APPEL-
parties to the murder of Sambhal Singh, and that doubt is strengthened as LATE
to Jhulai by the record of the report made by Pryag Singh, if there is any CRIMINAL,
truth in the case for the prosecution. Hargobind Singh, Eajwant Singh,
Buddhu, and Jhulai all took part in killing Sambhal Singh. If we do 1* A. 242=-
not believe the evidence for the prosecution as to any one of the four 12 A.W.N.
accused, we cannot believe the evidence as to the others. That evidence (1892) 83.
cannot be separated, as there can be no suggestion that the witnesses for
the prosecution are mistaken as to the identity of one of those men, and
are speaking the actual truth as to the others. On the evidence for
the prosecution, we acquit these four appellants of the charges
preferred against them, and direct them to be released. [269] We
may say that, even if the leading evidence for the prosecution were
not open to the comments which we have just made, we would not
consider it safe to act upon it, having regard to the illegal and irregular
procedure which was adopted by the Sessions Judge, and particularly to
the fact that three of the alleged eye-witnesses were not called until
almost the close of the evidence, and until the Sessions Judge had extract-
ed from the prisoners and their witnesses the whole case for the defence.
For a similar reason we would not have considered it safe to act upon
the evidence of Amir Singh.

Now as to the question whether the Sessions Judge complied with
the provisions of the Law, which he was bound to obey, in sentencing
the appellants when and as be did. As we have said, the opinion of the
assessors was given and recorded late in the afternoon of the 21st of
January 1892. The Sessions Judge sentenced these men to death before
5-20 P. M. that day.

Mr. Howard in his affidavit of the 15th of February 1892, of which,
at latest, on the 29th of February 1892 the Sessions Judge had received a
copy, swore in the 18th paragraph: "That the learned Judge, in my
presence, when passing sentence of death upon the prisoners immediately
after the verdict of the assesors had been delivered, in the absence of any
judgment, written, delivered or explained to the prisoners, directed that
the prisoners be hanged," &c. The rest of the paragraph is immaterial
for present purposes.

Mr. Spankie, Public Prosecutor, admitted that no judgment had been
written at the time when the sentences were passed. The Government
Pleader who was engaged at the trial has stated to us in the course of this
appeal that at the time when the Sessions Judge passed sentence the
Sessions Judge had not written his judgment, and that what the Sessions
Judge did at that time was to sign something which he had written or
then wrote, as the Government Pleader thought, with a pencil, and which
occupied about half a sheet of paper.

The judgment, or rather what purports to be the judgment, of the
Sessions Judge and is now within the record, bears the heading, ' Grounds
for conviction of these four prisoners for the wilful [270] murder of
Sambbal Singh, charged under section 302, Indian Penal Code," and is
signed by the Sessions Judge and dated " 21st January 1892. " In that
Judgment there is the finding of the Sessions Judge that all four prisoners
were guilty of wilful murder, but it does not contain the sentence.



1892 There is a separate document on the record which, with the excap-

JUNE 7. tion of a few words and the signature of the Sessions Judga, and possibly

the date, "21st January 1892," is not in the writing of the Sessions

APPEL- Judge. The following is a copy of that document :

LATE " In the Court of the Sessions Judge, Benares.

QBIMINAL Present G. J. Nioholls, Esquire, Sessions Judge.

Sessions Trial No. 79 of 1891.

14 A. 2*2- Queen-Empress versus (1) Hargobind Singh, (2) Buddbu, Koeri, (3)

12A.W.N. Rajwant Singh, and (4) Jhulai, Ahir.

(1892) 83, " Committed to Sessions for trial under sections 148 and 304, Indian

Penal Code, by Babu Balbhaddar Singh, Daputy Magistrate, 1st class,

Benares, on 12bh November 1891.


"Agreeing with the opinion of one assessor and differing with that of
the two others, the Court finds that the offence of wilful murder, punishable
under section 302, Indian Penal Code, is sufficiently proved by clear and
consistent evidence against the prisoners (1) Hargobind Singh, (2) Buddhu,
Koer, (3) Raj want Singh, and (4) Jhulai, Ahir, and it accordingly directs
that all the four prisoners be hanged by the neck till they be dead, at such
place as may hereafter be determined by the Local Government.


Sessions Judge,
21st January 1892.

It is needless to say that what we have just quoted is not the
judgment which is required by sections 366 and 367 of the Code of
Criminal Procedure, 1882. It could not have been considered [271]
by the Sessions Judge to have been the judgment required by those
sections, as what he has appended to his record as his judgment occupies
very nearly 20 pages of rather closely- printed foolscap. That document
cannot be the paper which the Government Pleader saw the Judge sign, if
his memory is to be trusted.

The judgment bears internal evidence that it could not have been
written or completed between the time when the assessors gave their
opinions on the case on the 21st of January and the time when the
Court closed on that day after the sentences had been passed. The
opinion of one of the assessors is referred to in a part of the judgment,
which is fourteen printed foolscap pages, from the conclusion of the judg-
ment. Having regard to the position in the judgment of the reference to
the opinion of the assessor, we doubt that, even if the judgment had on
the 21st of January been written down to that point, it could have been
completed sooner than the 22nd or 23rd at the earliest. We cannot
assume that a Judge, before the evidence in a case was concluded, would
begin to write his judgment.

It appears from the record that the Sessions Judge was on the 25th of
January, that is, four days after he had passed sentence, most irregularly
completing bis record by having evidence which had been given on the
7th of January read over to a witness. It is a hardly necessary to say that
no judgment as required by sections 366 and 367 of the Code of Criminal
Procedure was pronounced or delivered in open Court in the presence of
the prisoners, or at all, and that no judgment was dated or signed by the
Sessions Judge in open Court at the time of pronouncing it. What
justification there can be for the date " 21st January 1892 " being put on



a judgment which was not in existence on that date we are entirely unable 1892
to understand. JUNE T.

The judgment prescribed and required by sections 366 and 367 of the
Code of Criminal Procedure, 1882, is a written judgment which "shall con- APPEL-
tain the point or points for determination, the decision thereon, and the LATE
reasons for the decision, and shall be dated and signed by the presiding n RIMINAIj

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 81 of 155)