1. Azam Ali, son of Mammi Sheikh, age 25, resident of Talaiya Ghuran, police station Kotwali, District Shahjahanpur, appeals from his conviction under Section 302, I.P.C. and a sentence of death. The case is one of a most difficult nature. As we are of opinion that a retrial should be ordered we will endeavour to say as little as possible of our reasons for Chinking that there should be a retrial. It is, however, of course, unavoidable that we should say something.
2. The prosecution story is that one Mt. Idia, a Bhatiarin woman, was living in the city of Shahjahanpur, 200 or 300 paces away from the house of the accused Azam Ali. It was the practice of Mt. Idia to go out during the morning to collect refuse. Her husband had been living with her. There were also in her house, according to the first report by Shabrati, her husband's cousin three small children, but according to the evidence of the same man four little children. She had also a son the eldest, of about 15 or 16 years of age, who apparently was not living with her. Some time, it is not stated how long, before 28th November 1928, the husband Magsad is stated to have left Shahjahanpur. He is variously stated to have gone to Moradabad 'for the cultivation of melons,' and to have gone to Lahore. Strangely enough nothing further has apparently been heard of him, judging from the record throughout the trial. There may be no significance in this. It may only be due to the fact that the surrounding circumstances have not been put before the Court with the care which should have been exercised. It was, to say the least of it, desirable that the Court should know what the husband had to say as to his wife's being missing.
3. It is said that in the early morning about sunrise on 28th November 1928, Mt. Idia went out as usual to collect refuse taking with he refuse basket and her broom. The first report stated that she had gone out at 10 a.m. and had not returned since. The discrepancy between 'sunrise' and 10 a.m. again may not be of real significance. Some attempt has been made to explain it, and the discrepancy was possibly due to misunderstanding on the part of one person or another. At any rate, since 10 a.m. at the latest Mt. Idia has never been seen again. It is, of course, possible that her disappearance is duo to some other cause than her having been murdered in Azam Ali's house. It is one of the facts which we have had to consider. At 6-30 p.m. on the evening of 28th November 1928, Shabrati made a report at the police station, which is to be found at p. 5 of the paper book, narrating the circumstances of Mt. Idia's disappearance and expressing anxiety. Mt. Idia is said in that report to have been wearing:
silver kharua and chhanni, two silver churis on each wrist, a silver kanthsari containing 10 beads and four ear-rings.
4. The report concludes with the remark that the complainant was told that investigation would be made and he was to go away. As a result of the investigation the evidence of Mt. Dallo was obtained to the effect that she had seen Mt. Idia about nine paces from the house of Azam Ali, and the witness adds: 'she then went to the house of Azam Ali when I left her.' In the same compound apparently as the house of Azam Ali there lived his stepmother Mt. Akbari and Mt. Akbari's brother Shaukat Ali, and the man called Inayat, who was living in one of the houses in the compound as a tenant of Mt. Akbari. This man Inayat purported to have been leaving his house about sunrise on the morning of 28th in order to return to his village Mohammadi with his family. He said that he passed through the compound to go to the gate. He saw Azam Ali seize and beat and drag into his house some woman, but he could not say what woman. Rustam, who lived not in the same compound but in a neighbouring house stated that in the early morning he had heard some woman calling out, and the voice seemed to come from Azam Ali's house, 'Alas: He has killed me.' (' hai re mar dala'). The Sub-Inspector tells us that he left the thana at 9 O'clock to make an investigation. This part of the case is not easy to understand. He was at the thana at 6-30 p.m. when the report of Mt. Idia being missing was made. But then all that we know is that the reporter was told that investigation would be made and he was to go away. In his evidence the Sub-Inspector says that he got to the house of Azam Ali about 9 p.m., and that the house was about 3 furlongs from the Kotwali. He does not explain in his deposition what happened between 6-30 p.m. and 9 p.m. or what took him to the house of Azam Ali. But a report (Ex. E.), printed at p. 7 of the paper book, and which purports to have been made in the general diary at 4 p.m. on 29th November, i.e. the next day, says that:
at the time of departure yesterday it was learnt through a reliable source that Azam Ali mentioned above had shut up a woman in the small room in which he lived and was beating her very mercilessly in the morning and that her cries and wailings were heard by the people in the muhalla. On the basis of this information I ,... arrived at the house of the aforesaid Azam Ali.
5. It will be noticed that the Sub-Inspector speaks of a rumour which he had heard through a reliable source having reference to Azam Ali and the beating of a woman. We are not told what his reliable source was, or when he heard this rumour. It is manifestly a point that ought to have been elucidated, not necessarily as evidence against Azam Ali but as a matter which would have thrown a valuable light on the facts of the case, for there are other references in the record to the existence of such a rumour. If this had been properly before the Court it would at least have shown that Rustam Ali's evidence was possible not a very late invention. The Sub-Inspector arrived then at Azam Ali's house at about 9 p.m. He found it locked and sent for two search witnesses Audhbehari and Bhagwanua. He broke open the lock and seeing signs of blood in the room he thought it better to send for the Tahsildar, who came. As a result of the search there were found the articles detailed at p. 8 of the paper book. It is sufficient to say that most of these articles were spattered with blood, some very little, some soaked in blood, and that there was a large patch of blood in the middle of the room. He also found signs of something or somebody having been dragged either from the room outside to the chabutra or across the chabutra to the room. Some women and Shabrati were sent for with a view to identifying if possible the ornaments, and according to the prosecution story they identified the pota and four churis and some keys as belonging to Mt. Idia. All the blood that was examined on the various articles has been found to be human blood with the exception of a minute spot of blood on the pota which was exhausted in the examination by the Chemical Examiner and there was nothing left to be sent to the Imperial Serologist. Amongst the articles is a 'pharua' or spade of the shape used for collecting dung, and not only was it stained with blood, but there was a long black hair on it, and there can be little doubt that it was used for the assault which was apparently committed on some human being in that room.
6. We have had to examine with very great care the evidence that has been produced to establish this story and our burden has been very very much the heavier because the case has neither been well investigated nor well tried. There are countless points which should have been elucidated and no attention has been paid to them.
7. It is manifest that in order to bring home the charge of murder of Mt. Idia against Azam Ali it was not necessary that the prosecution should be able to produce her body, but it was essential that they should be able to prove to the satisfaction of the Court that she was dead and that she was murdered by Azam Ali.
8. Though it is not, of course, essential to prove motive it is equally obviously one of the elements to be considered in the case. We may dispose of this by stating at once that while suggestions have been vaguely made there is admittedly no evidence worth the name of any motive whatever. There is a hint that Mt. Idia was comely but at an earlier stage Shubrati said she was between 40 and 50. There is a suggestion that sometimes quarrels arose between these gari owners and ekkawalas on the one side and the women who desired to collect the stable refuse on the other. But there is no hint of any sort or description that Mt. Idia and Azam Ali had ever before come into contact even in the most ordinary way. Much less is there any evidence whatever of any intrigue or any evidence whatever of any prior quarrel. On the other hand the evidence of Inayat, who had lived in the compound for two months previously, is to the effect that he had never seen the woman there before. The suggestion of murder for the sake of her ornaments is equally untenable. She was evidently a poor woman and there is no suggestion that her ornaments were of any considerable value. Some of the ornaments which she is said to have been wearing have disappeared altogether. On the other hand the prosecution has based its case largely on the alleged identification of the pota and the four churis which are said to have been found in the house, and the total value of these is not more than Rs. 5 or 6. At the outset therefore it must be taken, and indeed is practically admitted, that the prosecution have failed to suggest seriously any motive at all. The only account of any quarrel or anything bearing on the question of motive we have in the record is to be found in the evidence of Inayat It is transparently unconvincing. He says that as he came out of his house in the compound about sunrise in order to leave with his family for Mohammadi he saw:
a woman with a basket was collecting rubbish.... Azam Khan came from his house. He caught hold of the hand of the woman, she began to cry out. Ho had a stick and he hit her with it. I thought that quarrels of this kind went on daily and so did not think any more of it. I went away, he dragged her into his house.... I did not know the woman before. I had not seen her anywhere before.
9. Anything more unconvincing than this account it would be difficult to imagine. He purports to have seen the assault on the woman from the time when she was peacefully sweeping her rubbish to the time when the accused beat her and dragged her away inside his house, but he does not suggest that one word was spoken by either the woman or Azam Ali during this assault to indicate what the trouble was about. It is only necessary to add that it is admitted that there was very bitter litigation between Mt. Akbari, the stepmother, and her brother Shaukat, on one side, and Azam Ali, the accused, on the other, all three living apparently in the same compound, and that this witness Inayat was a tenant of Mt. Akbari, the stepmother, living in the same compound and that Inayat's statement was not taken for six days, owing, it is said, to his absence from Shahjahanpur, to appreciate that no reliance whatever can be placed on the testimony of this witness Inayat.
10. The police entirely failed to discover any body. The suggestion for the Crown is that Mt. Idia was murdered in the early hours of the morning very shortly after sunrise. No suggestion supported by any indication on the record is made at all as to when her body was removed. The best that can be suggested is that it may have been removed after dark on the evening of 28th November that is to say, some time between sunset and shortly before 9 O'clock when the Sub-Inspector arrived at Azam Ali's house. It is suggested that Azam Ali removed the body in his gari he being the owner of a gari and two ponies. But the cushion and boards of the gari were sent to the Chemical Examiner and no blood was found on them. It is possible, of course that the body was so well wrapped up that no blood stains affected the gari itself, but in view of the way in which the whole room was spattered with blood and the two garments found in the room were soaked in blood, and in view of the fact that there was nothing in the room to indicate, so far as the record shows, that Azam Ali kept any clothes there, and in view of the fact that the murder is clearly suggested to have been unpremeditated, it is difficult to understand what Azam Ali would have had with him in that room, or what he brought to that room, to wrap the body in, which would have effectively stopped any blood stains getting on to the gari. It is, of course, possible that he brought something else there to wrap the body in during the day. It is possible that a large amount of blood had escaped from the body, for there was evidently a spot two feet across in the middle of the room which had been caused no doubt by a pool of blood. It would be infructuous to speculate further. The fact remains that no blood stains were found on the gari.
11. Another suggestion was that the accused had taken away the body on his brother's ekka. It would be unnecessary to mention this but that a matter of considerable importance has been more or less inadvertently revealed, and that is that there is a distinct indication that improper pressure was brought upon Azam Ali to make him confess. As the evidence on this point has come out into the daylight it is desirable to mention it. The inquiry before the Committing Magistrate took place before an Honorary Magistrate, we do not know of how much experience. Anyhow before him Mr. Simpson, Line Inspector, was permitted to give evidence which was manifestly inadmissible and which the prosecuting Inspector knew or certainly ought to have known that he could not tender. The Crown can under Section 27, Evidence Act, give evidence of so much of a confession made to the police as may have led to the discovery of any fact. Mr. Simpson was allowed by the Magistrate to give evidence to the following effect:
The accused had voluntarily told me that he had thrown the dead body into Dakka tank (again said subsequently) into Garra river. I therefore sent for a motor lorry and went to the river Garra along with the accused and the Sub-Inspector, As pointed out by the accused I had two men dive into the river and had it searched, but the dead body was not found. After that the accused took us to Dakka tank. There was not much water in the tank. I had a search made in all the directions. The dead body was not found. In the course of this (investigation) when the accused told me that he took the dead body on Nanhu's ekka, I went to see Nanhu's ekka. I examined two of his ekkas. No blood stains were found on them. B. Jagannath Prasad, the investigating Sub-Inspector (i.e., the officer responsible for the investigation in this case) had gone with me to inspect the locality.
12. No one can road this without being satisfied of two things firstly, that the accused was never from first to last intending to make a voluntary confession, and, secondly, that the evidence was on the face of it wholly inadmissible. The conclusion from the first point can only be that pressure had been brought to bear on Azam Ali to make him confess; and that such pressure was brought to bear is clearly proved from the fact that he did not show the police anything at all but only gave them so-called clues which were absolutely false. He must have been either confessing willingly or have had illegal and improper pressure brought to bear on him. Had he been confessing willingly there is no reason why, if he really knew anything about the body, he should not have disclosed it. This conclusion might not have been justified from the mere fact that nothing was found at the place in the river which he first pointed out, but it is conclusively established by the fact that having first pointed out a place in the river he then pointed out a place in a tank. The conclusion from the whole of the record is that there is not an atom of evidence indicating how or when the body, or the living person whose blood had been shed in that room, was removed.
13. We next turn to the important question whether Mt. Idia is actually dead or only missing, and whether, if she is dead, she is to be identified with the human being who was assaulted in Azam Ali's room. The Grown relies upon, firstly, the fact that she is missing. That is clearly by itself not sufficient. Next, reliance was placed by the Government Advocate on the woman's basket and the ornaments said to have been found in the house. The basket is not a serious item of the evidence. It is admittedly a basket such as all these Bhattiarin women use. It is such a basket as may well have been used by any ekkawala, and no real stress has been placed upon it. Mt. Idia is said to have started out with such a basket but also with a broom. No broom has been found in Azam Ali's house, or left behind in the compound; and no suggestion is made as to why Azam Ali should have removed the broom.
14. Coming to the ornaments, these are the really serious items in the evidence said to connect the missing Mt. Idia with the person who was assaulted in Azam Ali's room. The first striking feature of these ornaments is that one of them is an article described as a 'pota.' It is a small string wristlet or child's anklet consisting of 16 small silver beads threaded on cotton or black string. Witnesses purport to have identified it as belonging to Mt. Idia. It was manifest when it was produced before us that it bore the appearance of being a small child's ornament and not that of a woman at all, and in fact we found from the record that it is even the case for the prosecution that it belonged not to Mt. Idia at all except in the sense that it is said to have been an ornament belonging to one of her small children who was actually living at the time in the house. When we asked the Government Advocate to suggest how one of the small children's ornaments should have found its way into Azam Ali's house, he was unable to suggest any rational explanation. If the child was wearing the ornament it is impossible to understand why Mt. Idia should have taken it off and taken it with her when she went on her ordinary duty to collect refuse. There is nothing about it which suggests that it was in need of repair. The ends of the black strings are in fact securely joined together, wound round and round, and firmly knotted, and it manifestly has been so secured for some time past. If it had fallen off the child's wrist, there is no conceivable reason why Mt. Idia should have taken it with her. It is needless to follow the other suggestions made. It remains impossible to account for Mt. Idia having this child's ornament with her on any rational supposition. On the other hand, it may well have found its way there if an instruction was given to some of those interested in the prosecution to produce some ornament which might be alleged to have been found in the room with a view to the manufacturing of evidence. The case presented by the churis calls for more serious consideration. There are three churis of one kind and one of another pattern. They are bent in such a way as one would expect if they had been pulled off a hand with violence. On the other hand it is not possible to be dogmatic about this because it is not certain how much they would be bent if they had to be taken off a wrist at leisure. They may also have been bent considerably since. We must take it as so far in favour of the prosecution theory that the twisting of them is consistent at least with their having been taken off with violence. They are said to have been found in a corner of the room and some earth appears to have been on them. It is not clear whether it was only some earth that had by accident fallen over them when earth was thrown on the blood in the middle of the room, or whether the suggestion is that there had been any endeavour to conceal them by covering them with earth. The former appears to be the more possible suggestion so far as we can judge from the evidence. It is manifest that the circumstances of the finding of these ornaments require careful examination, and we will give our reasons fully for not being able to place reliance on this evidence. We have already stated in this connexion the conclusions at which we have arrived in regard to the 'pota' or child's ornament. Next, we have the fact that no rational explanation is forthcoming or suggests itself why Azam Ali should have taken away some of the ornaments which the woman was wearing and left these four churis and the 'pota.' The whole lot of the ornaments could have been gathered up in a handkerchief. The churis themselves are of the most ordinary type. There is nothing peculiar by which they can be identified as the property of any particular person. The Sub-Inspector Jagannath Prasad in his report No. 27 made at 4 p.m. on 29th November 1928, says (we quote from p. 7 of the paper book) that he:
got the locks of the room and the house broken open and made a formal search in the presence of Audh Behari Lal, Bhagwannu and Pt. Bhup Narain Avasthi, Tahsildar.
15. This would clearly give an impression that the lock of the room was broken open in the presence of the Tahsildar. A similar impression is the only one that can be drawn from the 'fard talashi.' This position has since been abandoned owing to the proper attitude of the Tahsildar. As a matter of fact it now has to be admitted that the Tahsildar was not present when the locks were broken. It is on the other hand manifest that before the Tahsildar arrived at all other people, including the police, had been inside the room. This is established by the evidence of Bhagwannu, one of the prosecution witnesses. Next is the question of when the 'fard talashi' was written. It is manifest from the nature of the document itself that it is most unlikely that it was written there and then. Confirmation of this is to be found in the statement of the Tahsildar who has frankly and properly stated that the sight of the blood in the room turned him so sick that he did not remain. But notwithstanding this the Sub-Inspector Jagannath Prasad endeavoured to, as it would be put in vulgar parlance, 'bluff' the Tahsildar into signing the 'fard talashi.' He took it to him the next day and asked him to sign it. The Tahsildar tells us that he refused to sign it as the things had not been taken over in his presence. The Tahsildar did state in the early portion of his deposition that:
there were also four churis with a little earth over them, some of those there said that there was blood on them.
16. But how little attention owing to the impression that the blood made on him he was really able to pay to what was going on is shown by his statement in cross-examination:
I think that the keys were on the wall or it was the pota.
17. The pota being the child's ornament to which we have already referred. In fairness to the prosecution it should also be stated that the Tahsildar said:
then some Bhatiari men and women came and looked at the property.
18. He was therefore there apparently when the witnesses came who are said to have identified the property. But he continues:
I then felt a bit sick as I had never seen blood before and so I went away.
19. As to the valuelessness of this 'fard talashi' we may note the evidence of Bhagwannu who says:
the Tahsildar was there when the paper (fard talashi) was written.
20. The Tahsildar was manifestly not there. Next, we may note that there is an entire absence of any mention that either the police or the search witnesses or the other persons who came there had their persons searched before entering the room. Finally we may note the futile and improper proceeding adopted by the Sub-Inspector in reference to the alleged identification of these ornaments. It would have been manifest to him that the question whether these ornaments were the ornaments of Mt. Idia was one of vital importance and in regard to which he should be most careful. Instead of taking the smallest care about the identification he took the very step which must render all identification of the ornaments practically valueless. Having as he alleges found the ornaments there he proceeded, accepting his own version, to call Shabrati, the cousin of the woman's husband, and one or two women to the house, and there and then showed them the ornaments. A matter of minor but still some significance is that these persons who were called to identify the ornaments also purported to identify the bunch of four keys found in the room. We have no explanation offered to us of why this clue, for such it certainly was dropped. A bhatiari woman does not carry about four keys unless the keys are of some importance to her. We do not hear of a word about any attempt to fit the keys to any box or boxes which the woman possessed. The evidence to be afforded by such a test would suggest itself to any one, and the only conclusion possible is that the clue failed in other words, that the keys could not be proved to belong to Mt Idia. Both according to the 'fard talashi' and according to the report (Ex. E) No. 27, to which we have already referred, all the witnesses identified the keys as belonging to Mt. Idia. All the witnesses dropped this portion of their testimony when they came to Court. In view of all these facts we find it impossible to accept with any confidence the testimony in regard to the search in relation to these ornaments. Before leaving this part of the case we note that the report of the Sub-Inspector (Ex. E.) of his proceedings on the night of the 28th was not written till 4 p.m. on the next day. He tells us in his evidence that he did not leave the house till 2 a.m. and that he did not get back to the thana till after 2 a.m. It may be that he could have accounted for this but we have nothing to show what he was doing all that time. It would clearly seem to have been his duty to report what he had done at any rate early in the morning of the 29th. We find him stating in his evidence that:
I did not make any report of my return as I thought that when the witnesses came I should have to open the samman (clearly meaning the bundles of articles taken from the house) ton times, and it was better to wait until they had identified it. There is no rule that I must record my departure and return at the time.
21. Now according to the evidence all the witnesses had identified the churis, keys and other articles purporting to have belonged to Mt. Idia. There is no identification evidence even now before us other than this with the exception of the evidence of the dhobi as to the identity of a dhoti and shirt. His reason given for not making his report earlier is entirely futile. If there was anything to report later it could clearly have been made and should have been made the subject of a further report. Moreover it is difficult to accept his statement-but here we must speak with caution-that there was no need for him to make a report of his return. Para. 279(4) of Chap. 21 of the Police Regulations says that amongst other matters that must be recorded in the general diary are 'departure and return of police officers on and from duty.' It is manifest that when the Sub-Inspector returned to the Kotwali at 2 a.m. on the early morning of the 29th he returned from duty. The evidence connecting Mt. Idia with that room depended chiefly on the bona fides of the finding of these ornaments and of their identification. With this we have dealt and given our reasons for feeling that no reliance can be placed on it.
22. There remains only to consider the oral evidence. We have already dealt with that of Inayat, which it may be noted does not even purport to go to the identity of the woman and in any case he is manifestly entirely untrustworthy. Similarly that of Rustam. There only remains the evidence of Mt. Dallo. Her evidence takes us very little distance at all. She says that she saw Mt. Idia going along the road about nine paces from the house of the accused. Manifestly this does not involve the going or the intention of Mt. Idia to go into the compound in which Azam Ali lived. She states in a later sentence 'She (meaning Mt. Idia) then went to the house of Azam Ali when I left her.' This was not elaborated and it was not made clear what the witness meant when she used these words whether she had any conversation with Mt. Idia on the subject or whether she saw her actually go into the compound of Azam Ali. One thing is certain that she did not see her to go into the house of Azam Ali, if there is a word of truth in the evidence of Inayat. However, later she said in answer to the question from the Court:
Before that I had not seen her go to the house of Azam Ali. I had known her for a year or two.
23. She also therefore makes it plain that there is no evidence of Mt. Idia ever having gone to the house of Azam Ali before, Further in this connexion we may note that Shaukat Ali, the brother of Mt. Akbari, with whom Azam Ali had been in such bitter litigation for a year past admits that he has 'known Dallo as long as I can recall.' This evidence is again in our view, manifestly wholly inadequate to satisfy us that Mt. Idia went to the house of Azam Ali that morning. Before leaving Mt. Dallo we may note that she makes the striking statement at p. 21, line 43: 'It was at all 11 a.m. that I heard that the woman had been murdered.' Earlier in her deposition she had said, according to the English version: 'About 11 p.m. that night I heard she had been killed.' But we have checked this from the vernacular and what she said was: About 11 O'clock and not about 11 p.m. that night. Now we find it difficult to understand why this point was not pursued and elucidated. Manifestly what the witness said she had heard was not evidence that either Mt. Idia or any other woman had been killed, but it would have been invaluable as showing that the story that a woman had been killed did not first find utterance in the statement of Rustam which was not in fact recorded till 3 or 4 days later. There should also have been some attempt at any rate to enquire how it was that if Mt. Dallo had heard this rumour at 11 O'clock in the morning Shubrati, Mt. Piria and the other woman who were anxious about Mt. Idia's disappearance had heard nothing. This might not have elucidated anything that could be actual evidence against Azam Ali, but a matter of such importance should not have been left in obscurity. We have then given our reasons for being unable to hold that the identity of Mt. Idia with the person who was assaulted in Azam Ali's house has been established. It is manifest that the fact that Mt. Idia was missing from the morning of 28th November read with the fact that human blood had been freely shed in Azam Ali's house under circumstances indicating that at least a grievous assault had been committed must to any mind very very strongly suggest that there was a definite connexion between the two facts. But it is impossible for a Court in a matter of life and death to leap a gap in the prosecution evidence and to arrive by a process of speculation at a conclusion which there is no evidence to justify. We are, therefore, of opinion that the charge against Azam Ali of having murdered Mt. Idia must fail and under the provisions of Section 423(1)(b)(1) we reverse the finding and sentence.
24. We have now to consider another aspect of this case. Hitherto we have considered the question whether a charge of murdering Mt. Idia was established against the appellant and for that purpose we had to consider what evidence there was showing that Mt Idia was dead, and, if so, what evidence there was establishing the identity of Mt. Idia with the person who was assaulted in that room. For this purpose it was unnecessary to consider a very important item in the evidence, namely the finding in that room of two garments, a dhoti and a shirt, both of which may be described as smothered in blood. The prosecution led the evidence of Heta dhobi to prove that these two garments belonged to the accused. Apart, however, from this evidence the appellant did before the Magistrate admit that the dhoti and shirt were his, and before the Sessions Judge he not only admitted that the statement made to the Magistrate read out to him was correct, but he further again was specifically asked in regard to the dhoti and the shirt, and admitted that they were his. He was asked whether they were found covered with blood in his house and he replied:
No, they had not blood on them. They are lying there as dirty clothes.
25. While we have had reason to doubt the finding of the ornaments in the house we can find no reason whatever for doubting the evidence that these two garments smothered in blood were found in the house immediately the search began. We are satisfied, therefore, that two garments smothered in human blood and belonging to the appellant were found in the house. The next question clearly is in what manner did that blood get upon the clothes. In some cases it might appear that the assailant, whether the appellant or another, was wearing the clothes at the time the person was assaulted in the room. It might be on the other hand that the evidence would indicate that the blood might have got on to the clothes either when they were lying on the ground at the time of the assault or by being thrown on the ground after the blood had been spilt there. The third alternative is that there might be no satisfactory conclusion at all to be drawn from the nature of the blood stains. In the Sessions Court no attempt appears to have been made to consider which of these three conclusions was the correct one. We have, however, here examined these garments with care. In regard to the shirt we may say that in our view the appearance of the blood stains on it is consistent with the idea that their origin might be due to blood having fallen thereon during the assault, or that the blood might have stained the shirt owing to its being thrown on the ground after the assault had been committed. We only pause to note that there is apparently a foot-print of blood on the shirt. But the appearance of the dhoti is much more suggestive. The evidence is that when it was found it was folded double and from the coincidence of the blood stains it is apparent that it was thus folded when the stains came upon it. But this is not all. If the dhoti be spread out to its full length and width on the ground the soiled marks of wearing, apart from the blood at all, show very clearly that it had been worn for some considerable time subsequent to the last occasion on which it was washed. The dhobi says that the last occasion on which he had washed the garments was about eight or ten days before he had them shown to him for identification, and that it was on 22th November. However that may be, the dirt which had affected the dhoti through its being worn a considerable time is very clearly apparent on the garment. There are very clearly separately visible and identifiable the portions of the dhoti which are exposed to ordinary dust and dirt, and the portions which were protected from ordinary dust and dirt when worn are clearly identifiable as clean.
26. It then becomes immediately apparent that the clean portions of the dhoti which were inside when worn and so protected from anything which affected the dhoti when being worn, are absolutely free from blood. One conclusion is strongly suggested and that it is that the dhoti was being worn in the ordinary way on the body of some person at the time the blood stains came upon it. The prima facie conclusion, then, that we have been impelled to draw is that some human being was very grievously assaulted in that house and by someone who was wearing a dhoti belonging to the accused. Add to this the fact that the accused, so far as the evidence goes, did not appear in the house or in the compound in which his house is situated subsequently to the early morning of the 28th, but took his ponies and carriage away to the house of another person and spent the night there. There are at any rate materials for considering whether it is not established against the appellant that he did at least grievously assault some human being in his house on or about 28th November 1928. We have next to consider whether, if this be our view, while setting aside the conviction for murdering Mt. Idia we could properly arrive at a conviction on any other charge. We do not think it desirable ourselves to arrive at such a conviction for the simple reason that it might be said on behalf of the appellant that his whole effort during the trial had been directed to establishing that he did not murder Mt. Idia and that he has in the view of this Court succeeded in showing that offence was not proved, and that he was not charged with the offence of committing grievous hurt on or attempting to murder or murdering some person unknown in his house. The next question then we have to consider is whether we ought to and whether we can direct a retrial in this case. We have already referred to the provisions of Section 423. Under Section 423(1)(b)(1) we have reversed the finding and sentence and we can further proceed to order the appellant to be retried. Section 403(1) forbids a retrial only where a person has been convicted or acquitted and such conviction or acquittal remains in force. We have set aside the conviction and it is no longer in force, or is there any acquittal in force.
27. We have found the setting out of our views in regard to the evidence unavoidable, but the trial Court will bear in mind that the appellant may not have had any clear indication that he must meet some of the other aspects of the case on which we have laid stress, and that Court will no doubt approach the case with a wholly open mind, and will give the appellant the opportunity of producing any further evidence that he may desire to produce. We cannot lay too much stress on this point that the trial Court must approach the case with a wholly open mind. There will be no need for any further magisterial inquiry, but it will be open to the Magistrate to examine any further witnesses under the provisions of Section 219, Criminal P.C., and it may be desirable that the prosecution, if they desire to produce any further evidence at the trial, should have the witnesses so examined. It will, of course, further be open to the prosecution to tender all or any of the prosecution witnesses who have already been produced, or to omit such of the witnesses already examined whose evidence the Crown does not consider relevant to the amended charge. In framing the charge upon which the appellant will be retried we have, in the absence of any evidence establishing the death of the person assaulted, refrained from framing a charge of murder.
28. Before concluding it is desirable to summarize some of the points on which the investigation and the trial have been so defective that it has been quite impossible for us to arrive at a clear conception of the facts.
29. The accused denied that the room in question was his living room. There is no evidence of any charpai or any cooking utensils or other small articles such as a living room might be expected to contain having been found there, or in the other room described as 'zenana' on the map. The accused was not asked if he would like to say where he did live. A pestle is the only article in the nature of a food utensil found and of that, curiously enough, the accused denies ownership though he admits that the dhoti and shirt are his. This whole question is left in obscurity.
30. The evidence leaves in doubt where actually Mt. Akbari and her family and Shaukat Ali were living. In speaking of this we have had to say 'apparently.' Had the facts been known with certainty, it is probable that valuable conclusions might have been drawn.
31. Failure to make it clear when it was first known and how that an assault, at least, had been committed in that room; failure to put on record when the husband of the missing woman went away and what he had to say about his wife; failure to put on record full evidence about the keys; the reprehensible way in which the ornaments were shown without any test to the witnesses; the reprehensible effort to extort a confession; the failure to make it clear that Rustam was really in a position to hear anything; the failure to devote any attention to the examination of the dhoti and shirt; the failure of the Sub-Inspector to put the articles immediately into the malkhana and to make any proper report; failure to produce or explain the absence of Asghar from the witness-box; failure to get any fingerprints though these must have been easily available from the pharua and doors; these are matters that immediately suggest themselves. The list does not purport to be exhaustive.
32. In conclusion having reversed the conviction and sentence we order that Azam Ali be retried on the following charge: That you Azam Ali on or about 28th November 1928, at mahalla Talaiya Ghuran, in Shajahanpur city, attempted to murder a person unknown, and by such act caused hurt to that person, and thereby committed an offence punishable under para. 2, Section 307, I.P.C., and within the cognizance of the Sessions Court of Shajahanpur.
33. The trial Court will have of course the usual power to amend the charge in accordance with law if it sees fit.