1. Patey Singh and Sarup Singh appeal from their convictions under S 302, I. P.C., and sentences of death. We arcs of opinion that the convictions cannot stand. As the circumstances and nature of the evidence and the relations between the parties are unusual, the evidence led for the Crown will require detailed examination.
2. The story for the prosecution is as follows:
Jhamman Singh is a man of some position as village life goes, living in Baisanpurwa, a hamlet of Juniadpur. We are not informed as to the size of this hamlet but, so far as the evidence goes, it may have consisted of not less than half a dozen or a dozen houses. Jhamman Singh lived with his younger brother Mithu Singh whose wife Mt. Bitoli, is a young woman of twenty. These three persons are Thakurs. In the same house lived Shankar Teli with his wife Mt. Makhano or Makhania. We will refer to her as Mt. Makhano. These two persons occupied the position of servants in the house of Jhamman Singh. Next door to Jhamman Singh, in a house which came down to Jhamman Singh from his ancestors lived a woman named Mt. Parbati. She also was a dependent of Jhamman Singh. She had a son San-want Singh, who apparently lived sometimes in Jhamman Singh's house and sometimes with his mother, Mt, Parbati. Sanwant Singh was also in the employ of Jhamman Singh. Incidentally there is mention of neighbours of Jhamman Singh, but none of them play any important part in the case.
3. In Shib Singh Purwa, a neighbouring hamlet also appertaining to Juniadpur, lived Patey Singh and Sarup Singh the appellants. Patey Singh is in no way connected, so far as the evidence goes, with the family of Jhamman Singh. He is said at some time to have had - some property, as to how much there is no indication, but at the time of the events with which we are concerned he had lost all that property and is said to have been living as a very humble sweet-seller wandering round the neighbourhood selling his sweets.
4. Sarup Singh is a distant cousin of Jhamman Singh.
5. We have not any detailed information as to the distances between the various localities and houses with which we are concerned. But it may be taken that the houses of Jhamman Singh and Mt. Parbati are absolutely adjoining, while Juniadpur, Shib Singh Purwa and Bisanpurwa are all, within a circle of a radius of about a furlong. Patey Singh and Sarup Singh have been convicted of murdering Mt. Makhano, and the well in which her body was found was also within a hundred yards or so of Juniadpur and Bisanpurwa. We pause here to note the unsatisfactory nature of the only map which is on the record. It has before this been pointed out by the Court that the police should be at pains to make an informatory map of the locality showing all the important houses and other spots and the distances between them. In the present case it is of importance roughly at any rata to know how many people were sleeping that night within earshot of the place from which Mt. Makhano is said to have been taken away. The map shows us nothing whatever on the point. It shows Mt. Parbati's house, but as to who were the other residents and the situation of their houses it shows nothing at all. It does not even show Jhamman Singh's house or where the deceased lived.
6. The circumstances under which the murder is alleged to have been committed are as follows : Patey Singh is said to have had an intrigue with Mt. Makhano which was well known to all their little world, and it is said that in supporting her and administering to her wants and wishes Patey Singh squandered all his property, and then six months prior to the murder, that is to say, some day about February 1930, Alt. Makhano abandoned him and became the mistress of Jhamman Singh. All this time she was living with her husband Shankar Teli. This also appears to have been a recognized arrangement. There do not appear to have been any panchayats relating to the cases of either of the paramours; nor do there appear to have been any disputes whatever. It is the case for the Crown that Patey Singh, in revenge for his having been abandoned in favour of Jhamman Singh, joined Sarup Singh in murdering Mt. Makhano, Sarup Singh having his own motives.
7. Sarup Singh is alleged to have been if not actually carrying on an intrigue, at least behaving in a familiar way with Mt. Bitoli, the young wife of Mithu, younger brother of Jhamman Singh. This familiar behaviour is said to have been noticed by Mt. Makhano who spoke of it to Jhamman Singh and to other villagers. If there be truth in this, it is strange that nothing followed in the nature of a panchayat. It is however said that Jhamman Singh put his veto on the association between Mt, Bitoli and Sarup Singh and that the latter was forbidden the house, and hence bore ill-will to Mt. Makhano who had driven him away.
8. On the evening of 18th August, Jhamman Singh is said to have been tormented by ring-worm from which he was suffering and to have sent Mt. Makhano to Mt. Parbati next door to get some medicines. Mt. Makhano went and got the medicines and returned to Jhamman Singh. This is said by Mt. Parbati to have occurred about three hours after sunset. The medicines were tried but were found ineffectual, and about a pahar later Jhamman Singh went with Mt. Makhano again to Mt. Parbati to get some dead ashes to apply to the ring worm. This visit then must have been roughly speaking about 1 o'clock in the middle of the night. They roused Mt. Parbati, got the ashes and Jhamman Singh applied them and returned to his house. Mt. Makhano remained talking and smoking with Mt. Parbati and so remained for about a pahar. This would take us to about 4 o'clock in the morning but even allowing for the loose way in which this term ' pahar' is used by villagers and their hazy notions of the duration of an hour, it is not possible to come to any other conclusion but that it must have been at least at 1 or 2 o'clock in the morning that the next incident occurred. Mt. Parbati is the only witness to this. She says that after Mt. Makhano had been sitting with her smoking for about a pahar, Patey Singh and Sarup Singh came in through one door to her house, seized Mt. Makhano, Patey Singh catching her by the ncek and Sarup Singh catching her by the feet, and carried her out through the other door. Mt. Parbati remained in her own house. Mt. Parbati says that Mt. Makhano could not cry out, but does not give any indication as to why Mt. Makhano could not cry out. She was not asked by either the Crown or the defence why Mt. Makhano could not cry out. Nor does she say nor was she asked why she did not cry out herself, except that she says that Patey Singh threatened her. This is the only explanation that she gives why she did not herself raise some outcry, or at least go and inform her patron, Jhamman Singh. The fact then remains that according to the story told for the Crown neither of these women uttered a sound when this incident took place.
9. Jhamman Singh says that later in the night he awoke, missed Mt. Makhano who should have been sleeping near him and went to find her. Mt. Parbati told him nothing of what had occurred, but merely said that she did not know where Mt. Makhano was and that she had left her house. A search was made by Jhamman Singh and others in the neighbourhood for Mt. Makhano the next morning, and somebody found about 78 paces away from Mt. Parbati's house a large quantity of blood on a boundary between two fields. Later an orhni was found by a well about 200 feet away, and the finder Manna gave information of this and people naturally collected at the well. A body which proved to be that of Mt. Makhano was seen floating in the water and taken out. It was noticed that her private parts had been injured and in the light of the medical evidence it is manifest that the woman had been killed by a lathi or some such thing being thrust up her vagina with great violence into the inside of her body. It was suggested that there was a blue mark on her neck, but it is clear from the medical evidence that there were no marks of ligature or anything else indicating that the woman had been throttled or strangled or choked, or that she had died from or received any other injury than that of a lathi or some such thing thrust up her vagina. It is important to bear in mind the suggestion which was made by Jhamman Singh in his evidence in chief that there was a blue mark on the neck when the body was recovered, important in view of the allegations which we shall have to note as later incorporated in Sarup Singh's confession that Patey Singh throttled Mt. Makhano. It was manifest now that Mt. Makhano had been brutally murdered, and those two hamlets and village Junaidpur must have been buzzing with discussion as to the likelihood of this or that party being guilty unless indeed the truth was already well known.
10. The next fact that emerges is that Gulzari Mukhia of Junaidpur says that about 9 O'Clock in the' morning he saw Patey Singh wandering round with his sweet meat tray and, calling him up, had a conversation with him. Patey Singh was carrying at the time with him the orhini or sheet which has been produced in Court and which is said to have blood-stains on it. As the result of the conversation Patey Singh is alleged to have admitted to Gulzari that he and Sarup Singh had committed the murder. Gulzari says that he took steps to have Patey Singh secretly kept under observation, but he does not Suggest that he took any steps to have Sarup Singh searched for Lal Behari, Gulzari's brother, purports to have been within earshot when the confession was made. The next incident in point of time that has been disclosed is that Chunni, the chaukidar of Junaidpur, who had been informed that Mt. Makhano was missing and later of the fact of the discovery of her body, made a report at Gur Sahaiganj Police Station 1 1/2 miles distant from Junaidpur at 11 a.m. We shall have to refer this report later, but we may now mention that it referred to Jhamman Singh and Patey Singh having liaisons with Mt. Makhano, to the discovery of blood on the boundary between the fields which we have mentioned and the discovery of the body in the well. This report in view of the time at which it was recorded and the distance away from the police station may suggest that Chunni must have started from Juniadpur about 10-30. It would seem strange then that there is no mention of the confession alleged to have been made by Patey Singh to Gulzari, the Mukhia of Junaidpur about an hour or an hour and a half previously. No final conclusion can be drawn on this point, because of the uncertainty of the times. But it is a matter of common knowledge that people who go to report do not for one reason or another always get their reports recorded immediately on arrival. On the other hand, the present case was one of obvious murder of as serious a nature as it could possibly have been and the timings we have suggested are therefore more probably accurate.
11. The officer in charge of the police station left the police station at about 12 o'clock, arrived at the well, and held a panchayat in regard to the death. He appears to have learnt of the names of Patey Singh and Sarup Singh and of Mt. Parbati. Patey Singh he found on the spot, i. e., in the proximity of the well, but it does not appear how Patey Singh got there from Junaidpnr if Gulzari the mukhia is telling the truth when he says that he kept him under observation. The investigating officer says that he learnt of the name of Mt. Parbati as knowing something from the statement of Patey Singh. Later the second officer who had been sent for the purpose, brought Patey Singh under arrest. Searches followed and a lathi and sozani a sort of quilt, were recovered from the house of Sarup Singh. The lathi has no blood-stains, but the sozani is said to have had some human blood-stains. There is no suggestion that anything was recovered from Patey Singh's house. The only material exhibit attributed to him is the orhni or the chaddar which ho was wearing when he is said to have confessed to Gulzari mukhia. Patey Singh and Sarup Singh are said then to have been arrested; really because they had been implicated by Patey Singh in his confession to the Mukhia Gulzari, and of course there was the statement of Mt, Parbati. There appears to have been nothing else to implicate them than the facts we have mentioned, beyond this, if it is indeed worthy of mention, that one witness, Chandan, says that Patey Singh used to sleep in front of his house, and he found that Patey Singh was not there about a pahar and a half after sunset, that is to say, about half past 11. Sarup Singh was put up before a Magistrate to have his confession recorded the next day, 20th August, but the Magistrate sent him back to jail to consider further over the matter and did not record it till the following day 23rd August. It will be notice 1 that it was Patey Singh who is said to have confessed in the first place to Gulzari Mukhia, but Sarup Singh who made a confession to the Magistrate. No explanation is before us as to why Patey Singh refused to continue confessing or why Sarup Singh, as it were, took his place.
12. This is the whole of the case as stated for the Grown. We have now to examine the weight of this evidence. It appeared to us in the first place that the evidence of Mt. Parbati was wholly unreliable, and in fact the Government Advocate found it very difficult to support any other view. Mt. Parbati was in the first place a woman. In the second place she was living in a house adjoining to that of Jhamman Singh and was to all intents and purposes his dependant, Further her son was working as a servant of Jhamman. Singh, and finally she tells a story which to our minds is wholly unconvincing. The Government Advocate was constrained to admit, it was impossible for him of course to do otherwise, that her story could not possibly be believed as giving a true account as to how Mt. Makhano was removed from her house. It is not necessary to criticize the evidence about Jhamman Singh's ring-worm and the steps that he took to get it alleviated. The story of how Mt. Makhano was taken out of Mt. Parbati's house is the crucial part of her evidence and, if that cannot be believed, the rest mattered little. Mt. Parbati would have us believe that these two men, the appellants, whom she knew well from a long time past, came into her house in the small hours of the morning while she was talking to Mt. Makhano, apparently said nothing at all as to their intentions, offered no explanation of any sort of their action, simply seized Mt. Makhano, one of them catching her by the throat and the other by her legs, and carried her away through another door. Mt. Parbati makes the statement that Mt. Makhano could not cry out. She was not asked why Mt. Makhano could not cry out. She was not asked either by the Grown or by the defence. In view of the fact that there were only two men, in view of the description of the method by which the woman was taken away, and finally in view of the medical evidence that there was no sign of any injury or bruise or other mark on the woman's neck, it is difficult indeed to understand why she did not cry out. Further one would have expected Mt. Parbati, who know well of the relations between Mt. Makhano and Jhamman Singh, to have herself raised some outcry.
13. Her only explanation is that she was threatened by Patey Singh. She did not attempt to say anything to anybody. She did not attempt to obtain any help. She did not even slip across the few feet that were necessary to warn Jhamman Singh of what happened. There is not the slightest reason to suppose that she would be in any terror of Patey Singh or Sarup Singh in view of the fact that she was herself a dependant and protegee of Jhamman Singh. Finally she tells us that Jhamman Singh came later and asked what she knew about Mt. Makhano'a whereabouts and she told him that she knew nothing at all, excepting that Mt. Makhano had left her house shortly after Jhamman Singh himself had returned to his house. Now, the explanation of all this, once assuming that there is any truth in the story that Patey Singh and Sarup Singh had anything to do with Mt. Makhano's removal, might conceivably be that Mt. Parbati knew of the intrigue between Patey Singh and Mt. Makhano, and as a matter of fact did not really much care one way or the other whether the woman went away voluntarily or oven involuntarily with Patey Singh, but that afterwards she was afraid to admit to Jhamman Singh that she knew that Mt. Makhano had gone off with his rival Patey Singh. It is suggested by some of the facts of the case, but it is a mere speculation. It is not the case for the Crown nor is there any evidence to support it and beyond a mere mention it may be put aside. Before passing to the next stage of the evidence we note that no serious attempt was made by the Grown to inform the Court, nor did the Sessions Judge by his own inquiries make any attempt to discover it who wore the people sleeping that night in the immediate proximity to Mt. Parbati's house. We know that this was only a hamlet, but even so there must have been half a dozen houses at least with occupants of some sort, and being a hamlet, the houses were almost certainly to be found in close proximity to each other.
14. The only information that we can gather from the record is that Jharnman Singh lived actually next door to Mt. Parbati; that in his house were apparently Sanwant Singh, the son of Mt. Parbati, Mithu Singh, his younger brother, and Mt. Bitoli, his younger brother's wife, and Shankar Teli, the husband of Mt. Makhano. It was in the month of August and these people are not in the least likely to have been sleeping in closed rooms and therefore must instantly have heard anything in the nature of a cry either from Mt. Makhano or from Mt. Parbati. Further, there was a man named Chandan who was admittedly living close, and ho states that including his children there are eight members in his family. Incidentally we note that Patey Singh is described as belonging to Shib Singh Purwa. This witness, Chandan, stated that Patey Singh used to sleep at the witness' house in Baisanpurwa. No one took the trouble to ask for any explanation of why Patey Singh should be sleeping at Baisanpurwa at all when his own house or at any rate his own hamlet was Shib Singh Purwa. In view of these facts, it is manifest that it was necessary for it to be the Crown case that neither Mt. Parbati nor Mt. Makhano uttered a cry of any sort. But this latter allegation is inconsistent with the fact that Mt. Makhano's throat was not bruised. The medical testimony shows not the slightest sign of any injury on the throat or neck. We are not forgetting that it is stated that the mouth of Mt. Makhano when her body was found was seen to be stuffed with full of cucumber leaves. Why and when this was done there is no information but it is manifest, if there is a word of truth in Mt. Parbati's testimony, that it was not done in her house and could not have been the cause of the failure of Mt. Makhano to cry out.
15. Next we were asked by the Crown to rely upon the confession of Sarup Singh, and this requires careful examination. We must trace back the origin of this confession from that alleged to have been made by Patey Singh to the mukhia Gulzari. We have read the batter's evidence with care as also that of his brother Lal Behari, and we can only record our opinion that it is most unconvincing. This much may be said in favour of Gulzari that no adequate reason appears from the record why he should be giving false evidence. But we cannot forget that while he is the Mukhia of Junaidpur, Jhamman Singh is, as we have stated, certainly a person of no small position so far as village life goes. This would be a wholly inadequate reason if it stood alone for distrusting Gulzari's evidence, but, as we have said, his account of how Patey Singh came to make his confession and Lal Behari's own description of the incident are utterly unconvincing. Coming to Sarup Singh's confession alone we note that the Magistrate certainly did ask him the usual formal questions, and then Sarup Singh began his statement. He says:
Jhamman Singh and Mithu Singh are the sons of my father's elder brother. I had liaison with Mithu Singh's wife for the last two months. Makhani Telin lives in the house of Jhamman Singh. She saw me cutting jokes with Mithu Singh's wife and began to speak ill of me. X ceased to visit Jhamman Singh's house. Patey Singh had liaison with Makhania. He sold all his property.
16. We stop here to note that this confession purports to disclose (we shall deal with Mt. Bitoli's evidence later) the reason why Sarup Singh bore enmity to Mt. Makhano and was ready to join with Patey Singh in murdering her. The confession then continues : 'Then Makhania began to live with Jhamman Singh secretly,' Why this word ' secretly?' The whole case for the prosecution as developed by the witnesses is that there was no question of any secrecy whatever as to the liaison between Makhano and Jhamman Singh. That story suggests, from the mouth of two of the witnesses Mt. Parbati and Mt. Bitoli, that Jhamman Singh and Mt. Makhano had been living in open intimacy for six months past. Nor from the mouth of any witness is it suggested that there was anything secret at all. The confession continues:
Two months ago Patey Singh told me that he would kill sasuri (a term abuse). Day before yesterday Makhania was sitting at the house of Samant's mother after sunset. Patey Singh came to me and said: 'Lot us go and kill Makhania.' Patey Singh and I went to the house of Samant (no doubt the house of Mt. Parbati, mother of Sanwant or Samant). Ho pressed Makhania's neck and I caught her feet and both of us carried her outside the village.
17. Now we note here that, according to the confession, this murder was committed din munde he bad after sunset, and these words in their ordinary meaning only mean within the period from sunset to say an hour or two afterwards. Mt. Parbati's account would suggest that it took place from 2 to 4 o'clock in the morning. We know both from Jhamman Singh's and Parbati's account that Mt. Makhano went to Mt. Parbati's house twice that night. As she was not killed upon her first visit, it is manifest that anybody who about the time of sunset saw her at Parbati's house, would have known that she had left Parbati's house when she returned from her first visit and would have had no reason to expect her to make another. The times and circumstances stated are in hopeless conflict. Next the confession states:
There she was strangled to death. Patey Singh throttled her. He filled Makania's mouth with cucumber leaves.
18. The vernacular words gala dabakar mardala. Patey Singh ne gala dabaya leave beyond doubt what is intended by these words, yet we have occasion to note that there was, according to the medical evidence, no injury of any sort or description on the throat. Sarup Singh continues:
Thereafter Patey Singh took my lathi and thrust it in Makhania's vulva.
19. So, according to this, it was Sarup Singh's lathi that was thrust into the vulva and so far up the inside of the woman that it burst her abdomen, so far up that there was a pool of blood at the boundary between the two fields, and yet within a few hours when Sarup Singh's lathi was seized by the police, there was not even a speck of blood human or otherwise to be found on it. That is the Chemical Examiner's report.
20. This confession then examined with a reasonable care is a long way from carrying conviction, altogether apart from the circumstances in which it was made. Before leaving it we think it necessary to direct the attention of the Magistrate and that of the Sessions Judge, for the consideration of the former when he is recording a confession, for the consideration of the latter when he is considering the value of a confession, to the Manual of Government Orders, Vol. 1, Section 6, Judicial (Criminal) Department: Paras. 852, 853 and 853-A. We may hope that this volume is available to the Magistrate in the Library of the District Magistrate. In Clause (c), para 853-A it is laid down:
It is desirable that the Magistrate should question a confessing prisoner with the view of ascertaining the exact circumstances in which his confession was made and the connexion of the police with it, or in wider form that it should be the endeavour of the Court to record the confession in as much detail as possible with a view of affording material from which its genuineness can be judged, and of testing whether it is freely made or is the outcome of suggestion. Anything like a cross-examination of the accused has been rightly deprecated by the Courts, but it is important that, without any attempt at heeckling or endeavour to entrap the accused, a Magistrate should record his statement with as much detail as possible. The more detailed a confession is the greater are the chances of correctly estimating its value, and it is also useful to know precisely how it came to be made, to what extent the police had anything to do with the accused prior to it, and in the confession itself, the fullest possible particulars of the incidents involved. The questions and answers would be recorded and any misuse of the procedure would thus be detected. In no case, if possible, should the police who have been concerned in the investigation or who have arrested the accused be present while the latter is questioned and his statements taken down.
21. The Government have further, no doubt in view of their knowledge of the frequency with which false confessions are put before the Courts given the direction contained in Clause (d), Section 853-A that:
The Magistrate should add to the certificate required by Section 164, Criminal P. C, a statement in his own hand, of the grounds on which he believes that the confession is genuine, the precautions which he took to remove the accused from the influence of the police and the time, if any, given to him for reflection.
22. These orders of Government might as well never have boon written for all the attention that the Magistrate has paid to them. He has been particularly ordered to direct his attention to the question under what circumstances the confession came to be made. It is a matter of common knowledge that, if nothing but the usual formal questions are put to an accused person, he may be easily instructed in five minutes by any police officer what answers to give to them if he hopes to obtain a pardon or to escape punishment. It is impossible for us to set out in detail the nature of the questions which the Magistrate should ask; since while such questions could easily be indicated, it would only be to invite the police to instruct the confessing prisoner accordingly. Any Magistrate of intelligence should be able to direct his attention to questions about this matter without having such questions actually suggested to him. He has only got to consider what he would do in private life if he had one of his servants produced before him confessing to some fault and desired to ascertain the why and wherefore of the man being willing to confess at all, in order to satisfy himself of the truth of the confession. In what we have said we must not be taken of course to suggest that in every case are the police dishonest. We are sure that that is far from the ease. But on the other hand, we cannot for a moment shut our eyes to our experience that in many cases they are dishonest, and it is the business of the Magistrate to direct every effort to satisfy himself that a confession is really voluntarily and truly made and as to why it is made.
23. It is similarly the duty of the Sessions Judge or any other Magistrate before whom the confession may be produced to examine it from the point of view that we have indicated and not to accept it as a matter of course.
24. We are therefore unable to accept either the evidence of Mt. Parbati or the confession of Sarup Singh. In view of this, it is really unnecessary to examine the rest of the evidence which is open to much criticism, but there are two points to which we will refer, and we think that, if the learned Magistrate and the learned Sessions Judge had directed their attention at least to the first of them, much more light would have been thrown on the case. It is the intrigue of Patey Singh with Mt. Makhano which is said to have led him to commit the murder. It is admitted that Jhamman Singh had also a liaison with the woman, It was manifestly therefore of the greatest importance to ascertain in as much detail as possible the real facts of those liaisons. From the evidence for the Grown it is impossible to be sure of anything. Jhamman Singh states that Mt, Makhano had been intimate with Patey Singh from a period of four or five years and that five or six months previously Mt. Makhano had abandoned Patey Singh altogether and had been carrying on a liaison with him (Jhamman Singh). On the other hand Mt. Parbati says that Mt. Makhano:
Originally had intimacy with Patey Singh. She contracted intimacy afterwards with Jhamman Singh. She had intimacy with Jhamman Singh from six years before hot: murder. Six months before her murder her intimacy had ceased with Patey Singh.
25. Mt. Bitoli says:
From six years Mt. Makhano was in the keeping of Jhrairnan Singh.
26. It is impossible to reconcile these three statements, and yet these are the statements of the three witnesses, who along with Mithu and Shankar Teli, neither of whom were even called, must have known absolutely every detail of the matter. In this connexion it was a part of the case for the Grown that Patey Singh was likely to be suffering under a sense of grave injury, because Mt. Makhano had left him only after he had Fold all his property for her and squandered all his substance on her. We cannot find that either Jhamman Singh or Mt. Parbati or Mt. Bitoli, the three principal witnesses, acquainted with the facts, stated this fact at all. We find it only in the evidence of the chatskidar who baldly says:
She (Mt. Makhano) had taken all Patey Singh bad
and in the confession of Sarup Singh where he says:
He sold all his property. Then Makhania began to live with Jhamman Singh secretly.
27. Now it is manifest that, if Patey Singh had really sold all his property and spent the proceeds on Mt. Makhano and then she abandoned him, there would certainly have been serious trouble between Patey Singh and Jhaniman Singh. Experience of human nature shows that it is not a circumstance under which any man would be prepared to sit quiet, or at any rate prepared to sit quiet for six months and then suddenly take it into his head to murder the woman. The only evidence of trouble at all on this account is that of Jhamman Singh who says:
There used to be exchange of abuses between Patey Singh and Mt. Makhania because she had left connexion with him.
28. This is in our view wholly inadequate to account for Patey Singh suddenly taking it into his head to murder the woman six months after she had left him. If there were no quarrels between Patey Singh and Jhamman Singh, this is our conclusion; if there were quarrels, then Jhamman Singh, Mt. Parbati and Mt. Bitoli have concealed them, and it is not difficult to surmise how far, if the two men were fighting about this woman it is as likely as not, if the truth were known, that Jhamman Singh would be the one to be angered with her as it is as likely that Patey Singh would be angered with her.
29. We next come to the suggested connexion of Sarup Singh with this murder, and here possibly the story is even more extraordinary. It is not suggested that he was influenced in any way by the relations between Mt. Makhano whatever they were with Jhamman Singh or patey Singh. He is said to have been caught in what was at any rate a flirtation if not an actually intrigue with Mt. Bitoli, the young Thakur woman of 20 years of age, to have been caught by Mt. Makhano who proceeded to toll Jhamman Singh and the other villagers. Jhamman Singh forbade Sarup Singh from entering into his house. This is supposed to have annoyed him and, according to the confession, to have led him to enlist the services of Patey Singh in helping to get rid of Mt. Makhano. This story is, to one's astonishment supported by this young Thakur woman of 20 years of age Mt. Bitoli. It is unheard of in our experience that a young Thakur woman should come forward and confess in open Court to her perpetual shame and the disgrace of herself and her family that she had been carrying on an intrigue with her distant cousin. If the story be believed by the villagers, it would almost certainly have been followed by a panchayat and the appropriate punishment of the family. There is no hint that any such panchayat followed, though Mt. Makhano is said to have told the other villagers. Mt. Bitoli continued to live with her husband in her husband's house instead of being as almost certainly would have been the case, sent off to her father's house. She was in no position to stand out against anybody. She was a young woman, and Jhamman Singh was her husband's elder brother. On the other hand, if her story is false, if she is giving false evidence at the instance of Jhamman Singh, the whole of the village would know it and we would not expect to find any panchayat or any notice taken of it. This might suggest, though it can do no more-than suggest, that Jhamman Singh had some motive for putting her into Court to give false evidence. There can be no question, but that, if Jhamman Singh had chosen to keep her out of Court, his influence would have been sufficient to make it not worth the while of the Crown to put her into the witness-box at all. If 'one thing is more certain than another, it is that she came into Court with Jhamman Singh's consent, and naturally the question suggests itself-why
30. Before concluding we feel that we must comment on the attitude of the learned Officiating Sessions Judge. It is not the duty of a Judge to find any and every reason possible and accept any and every argument to whittle away the significance and the defects of the prosecution, but this is the attitude which the learned Judge would seem from his judgment to have adopted. He has in the first place just recorded the evidence for the prosecution without any attempt to fill up the gaps in important places by getting explanations from the witnesses which the Government Pleader failed to get and the witnesses failed to give.
31. The following passage occurs in his judgment:
In their statements Mt. Bitoli and Mt. Parbati had stated that Jhamman Singh had illegal intimacy with Mt. Makhno from six years and on the basis of these statements of theirs it is contended that Paley Singh, accused, had no reason to grudge her intimacy with Jhamman Singh and thinly to kill her when during the same period she had intimacy with him. What those women could know about the time of the commencement of illegal intimacy between Jhamman Singh and Mt. Makhano?
32. Now if one thing is move manifest than another, it is that those two women were, above all others, the two persons in that hamlet who apart from the principals, were most likely to know the exact facts and every detail of the intimacy of Mt. Makhano with the two men in question. How then can the Judge say in an endeavour to reconcile their statements with the case for the prosecution: 'What could the women know?'
33. Again he records the fact that Mt. Parbati says that Mt. Makhano could not cry out. One can only wonder that it should not have occurred to the learned Judge that this statement called for some explanation. He made no attempt to get it.
34. Ghunni, the chaukidar, according to his own account, knew before he went to report at the police station that the last place where Mt. Makhano had been seen alive talking was Mt. Parbati's house, but he omitted to mention it in his report. It was manifestly a very very important fact. Next to the fact that Mt, Makhano's body had been found and that she had clearly been murdered, it was perhaps the most important fact within the chaukidar's knowledge. It was therefore a very sound criticism that ho had failed to mention this at all, and yet the learned Judge whittles it away with the comment that from the chaukidar's point of view the mention of it was not material unless he was questioned.
35. Similarly he whittles away the importance of the fact that in Lal Behari's statement recorded before the police he never even mentioned that he had heard Patey Singh's confession, and he makes a very unconvincing observation that Lal Behari
could not volunteer the statement about the confession of Patey Singh when ho was not questioned about it.
Lal Behari has given evidence, and it is the only fact of importance in his evidence at all.
36. Finally the Sub-Inspector was displaying a most remarkable ignorance of what was happening in Court as regards the taking of Sarup Singh's confession and the proposals that he should be made an approver. The learned Judge accepts this profession of ignorance as if there was nothing strange about it, and suggests that the Prosecuting Sub-Inspector might have taken the stops ''for some reason of his own.' We find it difficult to believe that a prosecuting Sub-Inspector would take steps to secure the pardon of one of two alleged murderers, which steps could only be taken under the belief that the evidence was inadequate without an approver, without consulting, advising or warning the investigating Sub-Inspector responsible for the case of the course that he felt himself compelled to adopt. For the reasons that we have given, we find it is in our opinion unsafe on the evidence that we have had to consider to maintain the conviction and sentences.
37. We therefore allowing the appeal, set aside the convictions and sentences and direct that the appellants be released forthwith, unless their detention is lawfully required for some other purpose.
38. A copy of this judgment will be specially sent to the committing Magistrate who recorded the confession, the Magistrate who inquired into the case and the Officiating Sessions Judge.