Woodroffe and Mookerjee, JJ.
1. The accused Kangal Mali, a boatman, is charged with the murder, on the evening of the 13th December 1904, of one Mahabir who had left a place named Kalachera on the day previous by boat for Sealtek Bazar on the Barak river. The majority of the jury have returned a verdict of not guilty. One juryman, however, and the Sessions Judge are of opinion that the accused is guilty of the offence with which he has been charged.
2. The Sessions Judge has, therefore, referred the case to this Court.
3. The facts as to which there is practically no doubt are these. The deceased Mahabir, a trader at Kalachera, had in his employ a boatman, named Labhan. The latter fell ill and sent as his substitute his brother, the accused, who is a young man of about 25 years of age. The deceased was both an older man and, according to the evidence given by his brother-in-law, a strong stout man, a man of greater strength than the accused. Mahabir intended to go to Sealtek Bazar to buy goods for his shop. He left Kalachera with the accused, no one else being in their company, on the afternoon or evening of Monday the 12th of December 1904. The boat in which they went was a 35-maund boat, about 18 or 19 cubits long and about 4 cubits wide.
4. It was covered with a bamboo roof for its whole length except for about 2 1/2 cubits in the bow and in the stern. The roof was about 2 1/2 cubits high and the evidence is that a man could not stand up in the boat under its roof. The deceased took with him some cooking utensils, some other articles and Rs. 100 in a bag and a cloth-belt which he wore and in which, to use the language of his widow who has given evidence, there was a sum of 'less than Rs. 80.' The boat moored at Kuchila Garden at 11 or 12 o'clock at night and the accused and the deceased passed the night of the 12th of December apparently alone together on the river. On Tuesday morning the 13th of December, the deceased bought some parched rice from one Siv Gopal Singh at Kuchila. So far as the evidence for the prosecution goes this is the last place and the last time at which the deceased was seen alive. From this time until the afternoon of the 14th December the facts which we now state rest upon the statements of the accused. He says that at 10 or 11 o'clock he and the deceased passed the Matijuri Ghat, and the deceased told the ghat babu (who has not been called to give evidence) that he was taking the boat empty to Sealtek for goods. At 12 o'clock the deceased and the accused passed Bandukmara, and then they cooked and ate rice and reached Sadar garden at about 4 o'clock. There, it is said, three persons of the names of Noyan Mali, Narayan Mali and Sibram Mali, who were going in a boat, were met. They asked the deceased where he was going and were informed that he was going to Sealtek Bazar. The accused's statement then runs as follows: 'Thereupon they said 'let both our boats proceed together'. Noyan and Sibram came on our boat, smoked tobacco and went away. Then Narayan came and smoked tobacco. At 7 or 8 in the evening those three men came and told me to be an accomplice of theirs. I declined. I said take 'his money but do not take his life '. I made a sign to Mahabir by a wink. Mahabir did not understand it. Thereupon Narayan caught hold of me, and the other two, Sibram and Noyan, killed Mahabir, with what I cannot say.' In the statement made by the accused before the Magistrate, on the 29th December 1904, he says that he was threatened by the dacoits who told him to inform the deceased's widow that a dacoity occurred in this way otherwise they would go one night and take his life. He says in his statement before the Sessions Judge that while he was held by Narayan he on the excuse that he wanted to make water went to the side of the boat. Narayan held him by the arm, but he jumped into the water. He then says that he swam to the bank of the river and raised a hue and cry. He then went to the village and asked the inmates of the first house for help, but they drove him away as a mad man. He further says that he walked through the public road to Rup Charan's house and some one gave him a mat and he slept on it. This was on the night of the 13th December. The next day he proceeded on his journey home and reached Hailakandi in the afternoon of the 14th December (Wednesday), and there he took a pice from a relation of his, Ratan Mali, who has deposed that he saw the accused. He asked for this pice to enable him to cross the Matijuri ghat. Ratan Mali gave the accused a pice as requested. After that the accused states that his brother's friend, Rasa Mali, gave him a fish for his (the accused's) brother's wife, that he went home by the Matijuri road and reached his brother's house at a late hour of the night, that he wished to lodge an information with the police but he was unable to do so as he had no pice with him. As it was apparently Very late at night the accused took his food and went to sleep immediately after his return home. His brother Labhan and the latter's wife have been called to speak to what took place on the accused's arrival and on the following day. Admittedly, on the morning of the 15th December, Thursday, the accused gave out that there had been a dacoity although, it is said, that he did not mention the names of the dacoits until, according to the evidence of the police, sometime between the 22nd and the 24th December. On the evening of the 15th (Thursday), the accused was taken into custody by the police on suspicion and thereafter he remained in such custody. On the 16th his house was searched, but none of the missing properties were discovered. A search was then made for the boat and for Mahabir and both were found on Sunday the 18th of December. There were marks of blood inside but not outside the boat. The inside of the bamboo roof and the mat in the boat were found splashed with blood. The things inside the boat were in such disorder as if, as was stated by the deceased's brother-in-law, a struggle had taken place in the boat. A certain number of articles were found including the deceased's cloth-belt in which were Rs. 75-8 a sum in all probability representing the whole or nearly the whole amount taken by the accused in that belt, About a quarter of a mile from the boat the dead body of Mahabir was found floating in the water. It bore a number of wounds. There were four cuts through the skull, two through the bone on the right side of the chest, two through the bone on the right shoulder, one on the surface of the right wrist and another on the fleshy part of the left forearm. The frontal bone, the right parietal and the occipital were cut through. The second and third ribs were cut through and(sic) scapula was also cut through. These were the wound which were discovered by the Hospital Assistant who had given evidence. But in addition to these, the brother-in-law of the deceased stated that he found that the fingers of the left hand of the deceased had been cut off. The medical witness states that in his opinion the wounds which he spoke of were inflicted with some sharp heavy instrument like a dao.
5. On the 29th of December the accused made to the Magistrate a statement implicating three persons namely, Narayan, Sibram and Noyan, as the authors of the crime, and which statement is substantially the same as that made by him subsequently to the Sessions Judge. There is no doubt upon these facts that Mahabir was murdered, and in all probability the motive for such a crime was robbery as, amongst other things, the bag which he carried with him containing the Rs. 100 had disappeared. The real question, however, to be determined, is who committed the crime? There is no direct evidence on this point, the evidence being entirely of a circumstantial character. There is no question that the accused and the deceased were together and were apparently last seen together. They, however, as was stated, admittedly, passed the night of the 12th December together alone, and the crime did not take place until the following day. It is upon the fact of the accused last being seen with the deceased and upon the subsequent conduct of, and statements made by, the accused, to which we will refer, that the Sessions Judge is of opinion that the accused should be found guilty.
6. The prosecution evidence is of three kinds. In the first place it is said that no mention was made by the accused, on the 14th December, of any dacoity having occurred to the witnesses Ratan Mali, Abbas Ali, his (the accused's) brother Labhan and the latter's wife Maya. Further, if we are to believe the evidence of Abbas Ali, the accused gave a false account of himself, stating that he had come from Badarpur, whither he had gone carrying the cloths of a bairagi whose name he said was Padma Lochan. Though it was late in the evening when Ratan and Abbas are said to have been met by the accused and when the accused arrived home, and though his not giving out until the next morning that a dacoity had been committed makes the matter a delay of a few hours only, still this evidence, if true, does raise a suspicion against the accused as also (allowing for any fear caused by the alleged threat of the dacoits) the fact, if true, that the names of the dacoits were not given until some days later.
7. Nextly, it is said that certain previous statements made by the accused are inconsistent with the story which he told the Magistrate and the Sessions Judge. These statements were made both to the police and to third parties. In so far as the statements made to the police are concerned, it has been contended that they are inadmissible, in evidence. The law, however does not say that all statements made to the police are inadmissible but it excludes only confessions made to them there being a distinction between mere admissions and confessions which are statements either directly admitting the guilt of the accused or statements which suggest the inference that he committed the crime with which he is charged. Further, the general rule is subject to that which admits statements leading to discovery whether such statements amount to a confession or not. Applying these principles to the statements before us, we find that they divide themselves into two classes, first, there is the evidence of statements made by the accused to the police pointing out the place where the alleged dacoity was committed, the place where after the dacoity he concealed himself in the paddy field, and also the houses where, he said, he went for assistance. As regards these statements, whether they be regarded as information leading to discovery or as statements made by the accused as part of his defence, it does not appear to us that any objection can successfully be taken. Then there are statements which were made by the accused as to what, according to, his case, had actually happened: statements exculpating himself and put forward by way of his defence. These statements also are admissible notwithstanding that by other evidence it may be shown that such statements are inconsistent with truth. In fact a useful test as to admissibility of statements made to the police is to ascertain the purpose to which they are put by the prosecution. If the prosecution rely on the statements of the accused to the police as being true then they may, and probably in many cases will, be found to amount to confessions. If, on the other hand, as in the case of the statements to which we have just referred, the statements of the accused are relied on not because of their truth but because of their falsity, they are admissible. They are in such cases brought forward to show what the defence of the accused is, and that, as the defence is untrue, this is a circumstance tending to prove the guilt of the accused.
8. We are, however, inclined to think that there is one statement which was made to the police and which should have been excluded. That is a statement which the accused is alleged to have made with reference to the mark on his dhoti which is said to be the mark of blood. The Police Inspector, Ambica Charan Sen, says, 'my attention was drawn to the accused's cloth by a constable. On my asking accused what the marks were, he first said they were tobacco stains, then he said they were stains of betel nut and then he said it was blood'. We are inclined to think that this statement is, under the circumstances, (if it was in fact made) of an incriminating character, from which an inference might, though not necessarily, be drawn as to the accuseds guilt. No doubt the statement is not absolutely inconsistent with the accused's innocence, for it may be that his dhoti was stained (if it was in fact stained) in an attack made by others. Still the fact that the attack was probably made under the bamboo roof at some distance from the accused who, according to his account, must have been standing in the open part of the boat, and the prevaricating character of the alleged statements, render it of at least doubtful admissibility, if not, as we are disposed to think, inadmissible. Further, for the reasons which we shall state, we are not able to accept the evidence that there was any mark of blood on the dhoti. On these grounds, therefore, we think that the statement should have been excluded as we exclude it from our consideration. The discrepancies which are alleged between these previous statements of the accused and the statements made to the Magistrate and the Sessions Judge are these. It is said that the case of the accused as originally made was that the boat was moored, whereas in his statements before the Magistrate and the Sessions Judge he says that the boat was at the time of the attack proceeding down the river. Then he is said to have previously stated that the dacoits came from the east by land, whereas his case in the statements before the Court is that they were in a boat and had come from their boat into his. Then there is a discrepancy as to the time of the alleged dacoity which in the previous statement is alleged to be 3 A.M. in the morning of the l4th December instead of about 7 or 8 o'clock of the 13th December as alleged in his statement before the Court. Nextly, there are some discrepancies also as to the number of the dacoits. The accused stated in Court that they were three in number, but in his previous statements on the point mention is made of a large number of men. An attempt has lastly been made to show that these statements which the accused is said to have made were in fact false. It has been shown that the place, said to have been pointed out by the accused as that where his boat was, is a place at which the bank is steep and high and where the current is strong, and, therefore, a position at which the boat could not have been moored. It is said that the dhan field which the accused pointed out as the place in which he concealed himself showed no signs of damage whatever, and the persons, to whom he is reported to have said that he went for assistance on the night of the dacoity, have been called to show that he did not come to them. The evidence, however, of these persons cannot in our opinion be relied upon to establish this point. The first witness, Rup Charan Mali, states that he does not know the accused which is also the case of the latter. He says the accused never came to his house, but he does not state in any portion of his deposition, whether in examination or in cross-examination, that he was in his house on the night in which the accused is alleged to have committed the dacoity. It is true that the witness Dhanu Ram, father of the witness Rup Charan, states that the accused never came to his bari and that he always remains at home, bat the third witness, a man of the name of Golak Ram Deb, while stating that the accused never came to his bari, also distinctly says that he was not at home on the day in question. Then, it is also said that if a dacoity had occurred, as alleged by the accused, no noise or cries were heard by persons who were in a position to have heard them. On this point the evidence of the two witnesses, Santi Ram Namsudra and Abdul Bepari, was relied upon. But what the first witness says in his cross-examination is this: 'No cries could be heard at my house from the place pointed out by the accused'. The other witness, Abdul Bepari, gave his evidence before the Magistrate at Hailakandi, but he was not called before the Sessions Judge and his former deposition was put in evidence. In our opinion, sufficient foundation was not laid for the reception of this deposition. The only evidence in support of the allegation that this witness could not be found is that of the head constable, Chandra Nath Sarma. He says he recorded Abdul's statement and that the latter was examined before the Magistrate of Hailakandi. He further says: 'Search has been made for Abdul to summon him to attend this Court of Session but he could not be found. A warrant was also issued. He is a man of Dacca district '.
9. It appears to us that this evidence is clearly insufficient. No warrant was produced. There is no evidence on the record to show that an attempt was made to serve the warrant, or, if so, what was done for this purpose There is no evidence to show what was done to find this man. It is quite clear that the witness said that a search was made, but he does not say that he himself made the search. If he did he does not state what steps he took, and if he was not the person who made the search, his evidence on the point is, if based on report, inadmissible.
10. Under these circumstances, we think that no sufficient ground was made for the admission of the deposition of this witness under Section 33 of the Indian Evidence Act; we think it should have been excluded as we exclude it from our consideration. On a review of the matters to which we have referred we find that a portion of the evidence is inadmissible, other facts relied on have not been sufficiently proved or are at least inconclusive. As to the remainder of the evidence, even if we were disposed (as we are not) to accept it as reliable in its entirety, we do not consider that it outweighs the circumstances favourable to the accused to which we shall now refer, or is sufficient to establish his guilt.
11. In order to justify the inference of guilt, the prosecution must show that the inculpating facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The hypothesis in the present case which the prosecution have to exclude is that the crime was the deed of dacoits as is in fact alleged by the accused. He has stated in detail the circumstances under which the dacoity and murder took place and has implicated by name the authors of the crime. No reason has been given why he should falsely implicate these three particular persons. This being so the fact that he names them tends to show that he at least met them. These persons were apparently present at an enquiry conducted by the police. They should have been, but have not been, examined as witnesses, and no explanation has been offered as to why they were not so examined. They have themselves not been called to deny the allegations which the accused has made against them of being concerned in this murder. Though the prosecution has omitted to call these three persons who are directly implicated, its has put forward one Durga Ram, a pan-seller who says that these three persons, Narayan, Nayan and Shibram are also pan-sellers and go to Sealtek Bazar far pan. But he cannot say where they were at the time in question.
12. Another witness, Prokash Chandra Mazumdar, was also (sailed, apparently to establish the alibi of these three persons. He says that on the last Tuesday of Agrahayan, which apparently corresponds to the 13th December, he saw them at Sealtek Bazar until 11 o'clock at night only. He speaks moreover even as to this period from unaided recollection, and he says that there was no special occurrence connected with these three men which would make him recollect their presence on that particular day at Sealtek Bazar. Another apparently remarkable fact is that the police-papers, to which we have been referred, show that, on the 24th December, some cooking utensils were found in the house of the man Nayan, whom, with the other two men, the accused charged with the crime. According to the same papers those cooking utensils (and it is to be observed that some cooking utensils were admittedly carried in the boat) were identified by the widow of the deceased as her late husband's property. It is true that the police officer says, in his report of the 25th December, to which we have been also referred, that he did not give credence to the identification. It may be that the identification cannot be relied upon and that there is in fact nothing in the point which is one capable of explanation. In our opinion, however, it was the duty of the prosecution to have brought out this matter, and to have explained it if necessary. Were it not for the view which we take of the other facts given in evidence, we should have considered it necessary to have remanded the case to take further evidence upon this point. As we have already observed the deceased was admittedly an older and a stronger man than the accused. Except for a short space at the bow and stern the boat: was closed in. The marks of blood show that the crime was committed inside the boat and under the bamboo roof under which, according to the evidence, a man cannot stand. There was no one else but the accused in the boat and, therefore, no one to manage it during the commission of the crime. The wounds were, as the evidence shows, most severe and numerous. The body was found floating in the water. It does not appear to us to be probable, having regard to the circumstances proved, that a single man and a weaker man than the deceased (as the accused was) could have been able to overpower the deceased and to come off without any wound or mark upon himself, even assuming that he had with him a dao in the boat as is alleged by the deceased's widow. Her evidence, how ever, upon this point does not appear to us to be reliable. In cross-examination she said that she had given evidence twice previously in the case and that she had previously mentioned that the accused took a dao. As a matter of fact, as pointed out by the Sessions Judge, there is no mention to be found of this statement in her previous depositions. This being so and there being no other evidence on the point to show that the dao was taken by the accused. we cannot accept the fact. Nor can, in our opinion the evidence that some marks which were found on the dhoti of the accused and which appeared to the witnesses to be like marks of blood be accepted. We have already dealt with the question of the admissibility of the accused's alleged statement to the police officer. There is nothing to show that the mark, supposed to be that of blood, is in fact the mark of blood as the cloth was not sent for chemical examination. Further, the so-called marks of blood were not discovered admittedly until the 18th of December and after the accused had been in the custody of the police for three days. Unless, therefore, these so-called marks of blood were so insignificant as to have been see with difficulty, it is wholly unexplained why it was not discovered before the expiration of this period.
13. Nextly the accused was alone with the deceased at night of the 12th December at which time, so far as we can. see, if the accused had been so disposed, the robbery and the murder could have been committed. According to the prosecution witness, the deceased's widow Sanjharia, the accused knew that the deceased had money in his cloth-belt, yet that belt and money were left in the boat and so far as we can see the contents of that belt were intact. This we need hardly say is not likely to have happened had the accused been the person who committed the crime, but it is what we might expect to have occurred, had the robbery and murder been committed by third parties, who, unless they carefully searched the accused or the boat, would have been unaware of the fact that he carried on his person in a cloth-belt a sum of about Rs. 80.
14. It is further the case for the prosecution that the accused must have stolen the money, which is alleged as the motive of the murder, yet we are also asked to believe that the accused who had so stolen the money was obliged to request the witness, Ratan Mali, shortly after the alleged murder and robbery, to lend him a pice to enable him to cross the Matijuri ghat. Even supposing that the accused had committed the robbery and had not taken all the money with him, it seems to us in the highest degree unlikely that he should not have kept even a pice about him.
15. Then we have the circumstance to take into our consideration that none of the missing properties were discovered with the accused though his house was searched on the 16th December. We are, on these facts, disposed to think that the dacoity and murder were committed by several persons and not by a single man as alleged; and we think that some of these facts, so far as they go, tend to exculpate the accused from having taken any part in the crime. There are certainly, if all the admissible evidence be true, which we must not be understood to hold, circumstances which threw some suspicion on the accused and which demanded a careful judicial enquiry. But they are insufficient to establish his guilt, and are, moreover, in our opinion, outweighed by the general considerations, to which we have just referred, which tell in his favour. We, therefore, agree with the verdict of the majority of the jury and acquit the accused and direct that he be released from jail and set at liberty.
16. We desire to express our obligations to the learned vakil, Babu Bhujagendra Mustafi, who has kindly appeared on behalf of the accused (who was previously unrepresented), and who has carefully laid before us the questions of both fact and law which require our consideration in the case.