George Knox, J.
1. Two men were placed before the Additional Sessions Judge of Cawnpore charged with an offence under Section 302 of the Indian Penal Code, They were Sheo Narain Singh and Abdulla. The charge against them was that they had murdered one Karim Bakhsh Pleader near the village of Andoli on or about the 14th of October 1919. Both the accused pleaded not guilty. There is no question about the fact that Karim Bakhsh was murdered. The medical evidence establishes that beyond dispute, but the question remains to be considered who was or were the murderers. Abdulla has been acquitted and Sheo Narain Singh has been convicted. The learned Additional Sessions Judge has convicted Sheo Narain Singh, according to his judgment, because he believed the evidence for the prosecution. In the same judgment he says that 'as against Sheo Narain Singh, accused, there is no eye witness but there is so strong circumstantial evidence, tantamount to eye-witness, that I have no hesitation in holding that he beat Karim Bakhsh with lathi intending to kill him, and this caused his death.' It is rather diffident to understand what is the circumstantial evidence which weighed so strongly with the learned Sessions Judge and which be considered equivalent to the evidence of eye witnesses. There were three witnesses, Salkta Brahman, Makhna Lodh and Bhikiri Chamar, who, according to their own statements, happened to be near the spot where the murder was committed, more or less by chance, and being there by chance on the day and about the time when the murder is supposed to have been committed, they say that they heard the voice of Karim Bakhsh, the murdered man, saying 'Gotam, do not kill me or you would be punished by God,' or words more or less equivalent to that. The learned Additional Sessions Judge is a new man at criminal work and he may have attached some importance to this. When he gets more experience, he will find that this evidence is some of the most deceptive evidence that can be put before a Sessions Court. The remainder of the evidence is taken up with the evidence to the effect that Karim Bakhsh did not return home as usual, that search was made for him, that first the mare which he was riding returned home without the rider and later on that his corpse was found near a high road. This is practically all the evidence in the case. There is also some evidence as to a quarrel having taken place between the deceased and a Zemindar of the village about the gutting of grass which was in dispute between the two. This evidence is very far from establishing any offence against Sheo Narain Singh. I would allow the appeal, set aside the conviction and sentence of Sheo Narain Singh, and direct his immediate acquittal.
2. I entirely agree. I only want, in the hope that it may assist the learned Judge on other occasions, to point out what I consider a very important duty in recording the evidence, specially in case s of circumstantial evidence, which duty is some times overlooked because the thing itself which has been dealt with seems so obvious at the moment. In a case of circumstantial evidence where the failure of one link destroys the chain, it is of the utmost importance to get on to the record every piece of evidence which makes the chain, otherwise there is danger of an Appellate Court, for example, not understanding how a particular conclusion has been reached and of miscarriage of justice resulting. There is an excellent example in this case. Bhikaria, P.W. 14, says that he saw the accused on the road two hours before sunset on the day in question and had conversation about his movements when he, Bhikaria was watching his juar crop. The only relevance of that evidence was to bring the adjusted into proximity with the scene of the assault. It may well be that his juar crop was close to the scene of the assault and that it was so obvious that it was close to the scene of the assault that nobody was concerned to dispute it. As has been often said, you frequently omit to note or to state facts which are so obvious that nobody is concerned to dispute them, but the result is that in this case there is upon the record not a single piece of evidence which places the juar crop of Bhikaria and the incident to which he speaks within any distance at all of the scene of the crime, except that it was on a road which led to Fatehpur. It might have been 10, 20, or 30 miles away for anything that appears on the record. The explanation may be that the defence did not dispute the fact, but if that is so it ought to appear on the record. And the learned Judge has in another instance taken the trouble to record a fact which was not disputed. He says that the quarrel between the deceased and the accused was admitted, and if the same thing had been done with regard to the geography of the juar field it would have been better. It is batter in a capital case not take admissions from the Counsel for the defence at all. The more prudent course is to have every fact strictly proved on the record.
3. The appeal is allowed, the conviction and the sentence passed upon Sheo Narain Singh are set aside and the direction is that Sheo Narain Singh be released from custody forthwith.