THE MURDER OF THE MAHATMA And Other Cases from a Judge's Notebook

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This is a book of memoirs by a very distinguished Indian Judge who in 1959 was promoted to the office of Chief Justice of the Punjab. It is largely taken up with criminal cases--of arson, dacoity, poisoning, vendetta, and so on-in which the author was personally concerned as a judge. Fascinating in themselves, these accounts are made the more interesting by the author's humorous and penetrating comments upon various features of Indian crime-the brilliant gift for perjury which some of his countrymen display, the long-term village feuds that every now and then explode into violence, the subtlety with which alibis are faked- and false identities assumed. The book ends with an authorita.tive and moving account of the murder of Gandhi, at whose assassin's long drawn appeal against conviction and sentence of death the author sat ou the Bench. Gopal Khosla's book will prove of great interest, both to experts in criminology and the Law, and to every layman who loves reading about the vagaries of humaQ nature and the customs of other lands.

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THE MURDER OF THE MAHATMA I

And Other Cases from a Judge's Notebook

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G. D. KHOSLA Formerly Olief Justice of the Punjab

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endeavour in lre? us your name ;lusion in our

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With a Foreword by Lord Evershed

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JAICO PUBLISHING HOUSE 125, Mahatma Gandhi Road. BOMBAY-!

© by G. D. KHOSLA, 1963 All rights reserved

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The MUl'dH of the Mahatma aDd other Cases fl10m a Judge's notebook Complete & unabridged By arrangement with Chatto & Windus Ltd.

London

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First Jaico impression: 1965 Second Jaico impression: 1968

Reprinted in India by N. M. Kothari at Rang Bharati Todi E"tate, Sun Mill Compound Lower Parel, Bombay-13

Published in India by Jaico Publishing Houie , 125 Mahatma Gandhi Road Bombny-l

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To KHUSHWANT

" the Mahatma and other fl10m a Judge's notebook Complete· & unabridged . ith Chatto & Windus Ltd.

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London

','at J aico impression: 1965 ind J aico impression: 1961

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Reprinted in India by N. M. Kothari at Rang Bharati Todi Estate, Sun Mill Compound Lower Parel, Bombay-13

--Published in India by J aico Publishing House 25 Mahatma Gandhi Road BombBy-l

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CONTENTS

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1 A Hanging and a Case of Arson ,(~~~ I

2 First Information Report

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3 A Case of Poisoning

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4 New Wine and Old Bottles 5 The Evidence against Palvindcr Kaur 6 Imperfect Alibi

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Change of Identity

121 141

8 Patterns of Murder

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The Mukerian Dacoity

10 The Crime of Nathuram Godse

198 226

FOREWORD By The Rt.

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The Lord Evershed, P.e.

I AM proud indeed to have been invited to contribute a foreword to this volume written from the record of his judicial experience by a distinguished Indian judge, until recently Chief Justice of the Punjab. I can feel no doubt that the book will very greatly appeal to English readers who will agree with me in admiring not only the style and language in which it is written but also the skill with which the author has selected the subjects of his ten chapters. These. subjects are delightfully varied in their nature and circumstances but are equally of arresting interest, so that (if I may judge from my own experience) the reader will in each case await the final denouement with no less excitement than that experienced in reading the best type of detective story. My pleasure in contributing this foreword is enhanced by the fact that I share with the author membership of Lincoln's Inn, which I shall be excused for regarding not only as the senior but as the most respectable of those great English institutions, the Inns of Court. Having taken a degree at Cambridge University in mathematics and after his call to the English Bar the author returned to India and for many years served as Magistrate, Civil Judge and District and Sessions Judge in various places. In 1944 he was appointed a Justice of the High Court of Punjab, being promoted to the office .~ of Chief Justice in 1959. It is from the last of ten chapters of the book that its title is taken; and to the English reader that chapter must be of particular interest because of its cIos~ connection with the assassination of Mahatma Gandhi. In the· course

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of the chapter the author tells of his experience when hecalled upon the Mahatma and sought his advice in regard to certain of the grave problems which afflicted India as the result of the severance of Pakistan therefrom. On that occasion the author states his conclusion that Mr. Gandhi had 'one passion, one source of strength within him, and that was a deep and pervading feeling of love. He loved Hindus and Muslims, Sikhs and Christians alike.' There is here indeed an obvious nearness to the second great Christian commandment, 'Thou shalt love thy neighbour .as thyself': and I cannot doubt that the good relations which have happily subsisted between this country and India since Indian independence owe much to this aspect of Mahatma Gandhi's teaching and influence. I do not doubt that the reader will be no less fascinated by the author's treatment in the first of his chapters . of the question that many people must often wish to ask of a responsible j~dge: 'What are your feelings when you are called upon in the exercise of your duty to pronounce sentence of death?' Of the remilining chapters I daresay that· many readers will share with me the fascination of the astonishing story told in Chapter Six and called the 'Imperfect Alibi'. The book brings out also some of the special problems which have been presented to those responsible for the administration of justice in India and which deserve careful thought by Englishmen. To one problem I have already referred-that which arose from the separation of Pakistan and India· and the terribly distressing circumstances which that separation brought about, particularly in the Punjab. The distribution of the population in that part of India in villages often· dominated by families or sections, acutely jealous rivals of each other, is shown very greatly to have added to the difficulties of the hardworked police .when called upon to investigate crimes and, in the course of such duties, to collect independent and teliable evidence-.difficulties which the author shows have

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not unilaturally, if police when satisfied to improve upon wh and unconvincing ca peets we in this cou: tunate as we are al skill and thoroughne available to English The reader may a quent recurrence of course to wholly difl hinder Singh occurs Hakim Khan as belo der and also to one be likened to our ow In his last chapte question with which: the visit to this coun the American Institu vestigate, with repre fession, the problem , tion whether· and to . papers and aCquaint case before it cOrries doubt and understanc ly among members a has so acquainted hir to come into Court " on one side or the I in the case describe< of this book. This to enter the lists upon ture to make the poir by a judge of the 1 may be overstated. were well founded it IJeaI the appellant w

FOREWORD

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, his experience when he19ht his advice in regard which afflicted India as :tan therefrom. On that clusion that Mr. Gandhi :trength within him, and eling of love. He loved ::::hristians alike.' There ess to the second great :halt love thy neighbour that the good relations ,tween this country and )we much to this aspect lUd ,influence. will be no less fascinatthe first of his chapters , must often wish to ask : your feelings when you your duty to pronounce .ining chapters I daresay :h me the fascination of tpter Six and called the : of the special problems hose responsible for the and which deserve careone problem I have ai: from the separation of ribly distressing circumJught about, particularly of the population in that .ominated by families or :>f each other, is shown e difficulties of the hard:0 inveStigate crimes and, collect independent and ~h the author shows have

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not unilaturally, if regrettably, sometimes tempted the police when satisfied that they have found the guilty party to improve upon what might appear to be the colourless and unconvincing case of the prosecution. In these respects we in this country may indeed be regarded as fortunate as we are also fortunate in regard to the great· skill .and thoroughness of the medical evidence rendered available to English courts. The reader may also be struck, as I was, by the frequent recurrence of the same names though attached 6f course to wholly different persons. Thus the name MOlhinder Singh occurs in three of the chapters and that of Hakim Khan as belonging both to an accessory to a murder and also to one of the victims. They may perhaps be likened to our own Nation's Wealth of Smiths. . In his last chapter Mr. Khosla raises a controversial question with which I was personally concerned following the visit to this country in 1961 of the representatives of the American Institute of Judicial Administration to investigate, with representatives of the English legal prof~ssion, the problem of appellate work-'namely, the questIOn whether and to what extent ,a judge should read the papers and aCquaint himself with··the facts of a: particular case before it comes before him for hearing. There is no doubt and understandably in this· country and particularly among members of the Bar a feeling that a judge who has so acquainted himself with the facts of a case is liable to come into Court with his mind substantially prejudiced on one side or the other-as undoubtedly was the fact in the case described by the author in the last chapter of this book. This is plainly not the occasion for me to enter the lists upon such a matter. I do, however, veriture to make the point that the opposition to any reading by a judge of the papers ina case before he tries it may be overstated. If the argument in its extreme form were well founded it would surely mean that in any appeal the appellant would inevitably win. A judge who

FOREWORD

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knows his job should, I claim, be able to acquaint himself sufficiently with such matters as the pleadings in the ,case, the. terms of any judgment under appeal, and the like, in order to save an appreciable amount of the time taken in Court and therefore an appreciable amount of the costs incurred which one or other of the parties under our system will eventually have to pay: and should be able so to do without risk of any closing of his mind to the . arguments which will be presented to him. But, above and beyond any of the matters to which I have alluded, one consideration emerges uppermost from a reading of this book which is of the greatest importance,and which should bring a sense of pride to all English readers, namely, the fact that in this great country of India our English system of law and our English way of administering justice are maintained and revered as being the best adapted for realising the essential requirements of.a free people. I had recently the privilege of being invited to sit in Delhi with the Justices of the Supreme Court of ~ndia, and I was indeed greatly moved by the evident belief which the Indian people have in our English law. I venture indeed to think that it is one of the strongest links that binds India to our Commonwealth and, for the future peace and happiness of' mankind, may. it long continue! We must therefore be highly grateful to the author of this book for the striking illustration it affords of this great truth.. I commend it accordingly with warm good wishes to English readers.

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A HANGING I AM often asked th, you sentence a man satisfactory reply wh brief sentence or tWl when my interlocutor become quite callous cult to find· the appro only administers the 1; of his duty to criticis elected representative lay down, is ohlyeval strike a defensive att demned man has take] fore, expiate his crimI a tooth and a life for civilised people. Thl answers: Capital puni of,person who kills aI really mind being senl story of the shipwreckl on an unknown islan< gibbet, because they re civilised people subje has to do one's duty; and judges are as hu develop an impersonal and really I don't tIill I have often given 1 complete and unsatis leave so much unsaid

, able to acquaint him, as the pleadings in the under appeal, and the )le amount of the time · appreciable amount of ler of the parties under [>liy; and should be able · ing of his mind to the · [ to him. · the matters to which 1 · nerges uppermost from of the greatest inlport· nse of pride to all Eng· in this great country of lour English way of adand revered as being the ntial requirements of ,a ivilege of being invited 1 the Supreme Court of ',oved by the evident bein our English law. 1 [I.e of the strongest links ~lth and, for the future may. it long continue! [ul to the author of this it affords of this great with warm good wishes

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A HANGING AND A CASE OF ARSON

I ~ often asked the question: 'What do you feel when you sentence a man to death?' I have not yet found a satisfactory reply which would accurately sum up in a brief sentence or two the information required. And when my interlocutor adds knowingly: 'I expect you have become quite callous by now', it becomes still more difficult to find· the appropriate answer. To say that a judge only administers the law of the land and that it is no part of his duty to criticise, alter or amend what the people's elected representatives have, in their wisdom, chosen to lay down, is omy evading the issue. Nor is it relevant to strike a defensive attitude by pointing out that the condemned man has taken an innocentIife and he must, therefore, expiate his crime in a suitable manner. A tooth for a tooth and a life for a life is not the way of humane and civilised people. There are, of course, the usual stock answers: Capital punishment acts as a deterrent; The sort of '.person who kills another holds life cheap, and does not really mind being sentenced to death; Have you heard the story pf the shipwrecked mariners who were washed ashore on an unknown island and sighted with relief on seeing a gibbet, because they realised, at once, that they were among civilised people subjcct to the rule of justice; Well, one has to do one's duty; A murderer evokes scant sympathy and judges are as human as anyone else; One learns to develop an impersonal attitude while administering justice, and really 1 don't think that I feel anything at all. 1 have often given these answers and others equally incomplete and unsatisfying. Stock phrases of this kind leave so much unsaid that often a false inlpression is gain-

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A HANGIN

THE MURDER OF THE MAHATMA

ed .by th.e q~estioner; besides, they induce a sense of dissatisfactIOn In me. What I should like to say is much

more involved and complex than can be stated over a f violence are commitIS are frank and undisrvedly to one side or the sharp sense of conflict it is difficult to find an ilose testimony does not 'lriends- and relatives are 19ainst a member of the {inced that the case is a ne or twoinnocent pere list of real culprits in llways present, and the :eep a vigilant eye when;rsons in the dock. The that a case over which lould not fail, and often an element of falsehood i : i i

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in, order to make the case foolproof. Faked recoveries of bloodstained weapons or clothes are not unknown; a witness may be commissioned to say that ,he saw the ~c­ cused persons in the company of the deceased or l~vmg the spot where the murder was committed im~edlately after the occurrence. I. once heard the llllegatlOn that· semen stains on a pair of women's trousers exhibited in a rape case came from a I11asturbating constable who wanted to win the favour of his superior officer. There are always persons willing to ingratiate themselves with the police, and what does it matter if they sttetch a point and lend their assistance to furthering a praiseworthy cau~. for the miscreants they are deposing against must be guilty -'why else would the police prosecute .them? .' . A great deal is said about the perjury commItted III Indian courts. There is a saying: 'Speak the truth. you are not standing in a Court oflaw', which is a devastating commentary on our judicial system. Policemen satisfy their conscience by telling themselves that. even' though the evidence in a case is .not all it should be, the person being prosecuted is the real culpr.it. Magistrates~nd judges have only the evidence by which they can determme the guilt or innocence of the accused person. S? ~ lar~e number of- cases fail and tl}e percentage .of conVictions. IS alarmingly small. I feel that one import~t fa~tor 'Yhich contributes to the prevalence of pefJury m thIS country is the lack of a solemn oath which would inspire an adequate measure of awe and fear in the mind of the depc-. nent. Statements' are usually made on sole,mn affirmation, and a non~Christian cannot be compelled to ta~e an oath having a religious significance. An early expenence of mine furnishes a good illustration of what 1 am postu~ lating. . . . . . In 1929 1 was a Sub-Divisional Magistrate in a district of Western Punjab where thejirga law is in force. The jirga is a council of elders to whom certain criminal cases are referred for trial. The procedure laid down isasfol-

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lows. Whenever the police feel that owing to family or factional loyalties or some other reason witnesses will not be prepared to give evidence against an offender, the case is laid before the magistrate for action under the jirga law. The magistrate reads the police diaries of the case and examines the attendant circumstances and if necessary makes such extra-judiCial enquiry as he deems Jlecessary and then either refers the case to the jirga or dismisses it. The jirga on receiving the reference makes an investigation into the matter and reports its finding to the magistrate, who then passes sentence on the offender if the verdict is 'guilty'. . The police asked for my intervention in a case of arson. A stack of wheat comprising the entire harvest of a farmer had been destroyed by fire, and though the culprits were known and had been seen setting fire to the wheat, the witnesses were somewhat 'shaky'. I asked the SubInspector of Police who had investigated the case what exact~y he meant by 'shaky'.. Were they reluctant to appear In court or were they unworthy of credit? The SubInspector assured me that the witnesses had, in fact, seen the culprits committing the crime, and 'their testimony c in dimensions. It w; been shut and:chain( were alleged to. have e of the door-panels frl cause most doors in tl work not by iron hin t)y means of a pin an them to' be pulled OUI an inch or two., Th ants were of different and a hUl)ting knife. of tb,e deceased were could have been infii( but there was nothiJ different "types of SIlE used. The contentiOl only one or two pel young man's death a nocent· persons along you could not distill! that of another, all fiv case really depended, of the mother and tb lied upon. They g-ai, the room in which tl the assault and recogJ the window in the WE the room of the deC! was an experienced l

B MAHATMA

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[ saw nothing at all. I when the burning, took mg; illiterate yokel of he room with a clumsy .y as jf he expected, to e moment 1 mentioned over his whole person. ,Ld edge away from the He stammered almost ~oran.'

: t sharply and reminded

" before me only a few down and began to sob Ian't touch the Kora../fI.

his early thirties. He wiously heard about the ,0 had had no time to,. !!ned quietly to what I ; When 1 had explained stepping forward pick• before him. Then he • the accused [he named 'heap of wheat and rereal culprits.' lble and asked me if he ,ous and I wasn't going in my best magisterial ?ese men setting fire to j

do this and merely reguilty and what he was'