Imam and Chapman, JJ.
1. This is a reference under Section 307 of the Criminal Procedure Code by the Sessions Judge of Burdwan who, not agreeing with a unanimous verdict of 'not guilty', of the Jury, has submitted the case to us for our consideration.
2. The accused Swarnamoyee Biswas is a young Indian Christian girl aged 15 years. She stands charged under Section 302 of the Indian Penal Code with the murder of her husband, Sampson, to whom it is alleged she administered strychnine.
3. Swarnamoyee is an orphan brought up and educated by Missionaries in Calcutta. The deceased was also an orphan brought up by Missionaries. He came from Mozufferpore to Burdwan, and was in the employ of the Reverend Mr. P.N. Sirkar at Burdwan as cook. He was illiterate. The girl came from Calcutta to Asansol and took a teacher's post in the Methodist Episcopalian Mission School there. The Missionaries arranged to marry the two. They were married on the 2nd November 1912 and came to Burdwan. Within a day or two of the marriage Sampson fell ill and had to go to hospital. Swarnamoyee then took up a teachers post in a Mission School at Burdwan, but not liking the place she returned to Asansol where she again became a teacher in the Methodist School. Sampson had remained sometime in the hospital when Swarnamoyee wrote to him to come to Asansol, and asked Mr. Byers, the head of the Vernacular Department of the Mission, to give him some sort of an appointment. Sampson came to Asansol and stayed for a few days in the bungalow of Mr. Byers, but grew worse. He was then told to go to hospital but he preferred not to do so, and on the 27th or 28th December, came to Budhadanga Mission house under the charge of Keshab Baboo, a subordinate of Mr. Byers. Swarnamoyee, who was living in the Widow's Home near by, was sent for to nurse her husband, and she accordingly came to occupy the same room with him in the Budhadanga Mission compound. Swarnamoyee used to get her meals supplied to her from the Widow's Home, while Sampson's invalid diet used to be supplied from the house of Keshab Baboo.
4. On the 2nd January last Sampson appeared to be better and was seen walking about in the compound on the morning of that day. At about 8 A.M. Swarnamoyee fetched, as usual, from Keshab Baboo's house, a cup of barley for her husband and at about 10 A.M. he was found in great agony. Rajani Baboo, a teacher, and Profulla, a preacher, came up, and discovering him in a state of convulsive pain, the latter informed Mr. Meik, belonging to the same Mission but in charge of the English Department, as to the condition of Sampson. Mr. Meik and Mr. Byers it seems do not agree, and so the former suggested to Profulla that Dr. Mittra, who sometimes attended patients at the Mission, might be called in to see Sampson. Dr. Mittra was not found, and as Mr. Byers happened to be out at the time he could not be informed of Sampson's condition. At about 11 A.M. Sampson died and Profulla and Rajani Baboo returned to their rooms. Keshab Baboo's wife called Profulla and told him that there was a letter, which was then in Rajani Baboo's possession, that mentioned poison, and that he should take it to Mr. Meik and seek his advice. Mr. Meik was shown the letter and informed of Sampson's death. Suspecting that the deceased had not come by his death in a natural way, Mr. Meik sent a chit to the sub-inspector of police, and himself went to the Budhadanga Mission and saw the corpse. In the room were two cups and a spoon which he directed were not to be touched. The letter was shown to Swarnamoyee who admitted it as having been written by her, but she explained that the poison mentioned therein was wanted by her for herself as she had been unhappy owing to having been tricked into a marriage with a man who was illiterate and a menial. Presently Mr. Byers came and so did the sub-inspector. Between Mr. Byers and Mr. Meik there was difference of opinion as to the cause of death, the former holding that there was nothing suspicious while the latter insisting on his doubts. The sub-inspector took charge of the corpse, the cups and spoon, and the letter. In the meantime Mr. Meik, while returning to his bungalow, was informed by some women on the way that two girls in the Mission were saying that Swarnamoyee, on the previous day, had asked them to pound three seeds, and on their not being able to do so she herself pounded the seeds. Mr. Meik called the sub-inspector to inform him of what he had heard. Just then Mr. Byers and Swarnamoyee also came up. She was questioned and, according to Mr. Meik, she admitted having pounded kuchla seeds but explained that she had pounded the seeds to apply the same to her head for killing lice. To the girls, it is stated, she had said that she wanted the seeds to be pounded for application to her husband's forehead. Mr. Byers says that he did not understand her to say that she had got kuchla seeds but kuchra seeds. We are informed that kuchra is the. seed of the mahua fruit which is quite harmless and contains no poison, while kuchla affords strychnine. The stone, on which the seeds were said to have been pounded, was taken charge of by the sub-inspector. The viscera of the deceased, the cups and spoon and the stone were sent to the Chemical Examiner whose reports show that the viscera and the cups and spoon bore traces of the strychnine, but no such trace was found on the stone. On these facts the accused was tried by the Sessions Court of Burdwan in May last, and convicted of the offence of murder on the verdict of the majority of the jury who were divided in the proportion of three to two. Against that conviction the accused appealed to this Court of which a Division Bench set aside the conviction and ordered a retrial on the ground of misdirection in the charge to the jury. She has again been tried and found not guilty by the jury who are unanimous in their verdict. The Sessions Judge, not agreeing with the unanimous verdict, has referred the case to us.
5. It was open to the learned Judge, when he disagreed with the verdict and intended to make a reference to this Court, to ask the jury the reasons of their verdict: Emperor v. Annada Charan Thakur (1909) I.L.R. 36 Calc. 629. That course, however, was not adopted and we are in ignorance of the reasons for the jury's view of the case.
6. The evidence against the accused is mainly of a circumstantial character, and there is nothing direct to implicate her in the crime. The rule that in cases of circumstantial evidence the facts found should be inconsistent on a reasonable hypothesis with the innocence of the accused, before a conviction is pronounced, has as much application to this case as to any other case of circumstantial evidence.
7. There can be no doubt that the deceased came to his death by strychnine poisoning. We may also accept that on the previous day the accused had pounded kuchla seeds. We may also for the purposes of this case concede that the strychnine found in the viscera and the cups was from the kuchla seeds.
8. In this case the evidence discloses that the deceased had been suffering from pulmonary phthisis, and Dr. Rajendra Chandra Barari, examined for the prosecution, states that strychnine is occasionally administered in phthisical cases to stimulate the heart.
9. Although Mr. Meik has stated that the accused had, in explanation of the reference to the poison in the letter, stated that she wanted the poison for herself as she was unhappy owing to having been tricked into an unequal marriage, we have it from several prosecution witnesses that she had married the man of her own free will with full knowledge of his position and had expressed no regret at her choice. The witnesses are agreed that between the deceased and the accused there had been no quarrel: on the contrary they were on good terms, and there appears on the evidence no motive on the part of the accused to kill her husband. Her conduct in writing to the deceased while he was at Burdwan to come to Asansol, and in asking Mr. Byers to provide him with employment, is in favour of the supposition that between him and her the sympathy, that generally exists between man and wife in the common concerns of life, had not been disturbed.
10. The letter, on which the learned Judge so much relies, hag been very carefully considered by us, and its contents Compel us to regard it as an extravagant expression of hysterical love entertained by one girl towards another. The reference to poison, to which the learned Judge attaches so much importance, forms part of a long paragraph full of figurative language, ornate with incoherent similes and metaphors. We regard it as unsafe to interpret the passage relating to poison in its literal sense when the preceding and the succeeding passages are not susceptible of similar treatment.
11. The learned Judge has farther relied on the statements of the accused said to have been made to Mr. Meik. Apart from any legal objection to their reception in evidence they were clearly not true and, at best, can be used to draw some inference from conduct. The question to our mind is whether the inability of the accused to explain the reference to poison warrants a conclusion that she asked for poison to administer it to her husband. We are unable to say that it does. We have to bear in mind that the accused, when confronted with one passage from a singularly absurd letter had to give, as she thought, some explanation, and she said what came uppermost in her mind. Allowance must also be made for her distraction due to the suspicion that Mr. Meik obviously had without reserve expressed. We are not prepared to attach much meaning to her statements, made to Mr. Meik.
12. The fact that the deceased had been suffering from phthisis, and trychnine is administered in such cases, is not without its significance in considering the reasonableness or otherwise of the verdict of the jury. The deceased was an illiterate person, and from his having refused to go to hospital it would not be unreasonable to infer that his faith in hospitals was not as firm as that of the average man, and we know from common experience the tendency of the illiterate and the ignorant to treat themselves without the aid of trained medical advice. We cannot fix on the jury the charge of perversity or unreasonableness if they believed that the deceased dosed himself with kuchla powder in the hope of curing himself, and employed Swarnamoyee who was nursing him to get the kuchla seeds for him. This hypothesis derives support from these facts that cannot be ignored in considering the case of the accused: (i) that Swarnamoyee, after getting the seeds, made no secret of the fact that she had them and actually asked some girls of the Mission to pound them for her; (ii) that the barley, if mixed up with the powdered kuchla seeds, must have tasted bitter, the medical evidence being clear on the point, and yet he drank and drained out the cup of barley; and (iii) that when Sampson was writhing in pain he accused nobody, but said 'God help me, Babu, I have sinned.'
13. Had Swarnamoyee got the kuchla seeds for the purpose of killing her husband, her guilty mind would have dictated to her the prudence of keeping the seeds a secret to herself, but we see on the contrary a freedom from caution in her behaviour in asking the girls to pound the seeds for her.
14. As for the bitterness of the barley, it is difficult to believe how he took it without detecting its taste, and it may reasonably be urged by the accused that Sampson, while taking the barley, knew what he was consuming.
15. His dying statement that he had sinned is another indication that may properly be claimed as showing that he was answering for his own act.
16. We find, en the facts of this case, that on a reasonable hypothesis they are not inconsistent with the innocence of the accused.
17. We desire to point out to the learned Judge that, it is not in every case of doubt, nor in every case in which a view different from that of the jury can be entertained on the evidence, that a reference under Section 307 of the Criminal Procedure Code is to be made to this Court, but the verdict of the jury should be manifestly wrong before such a reference is made.
18. We wish to endorse and emphasize the remarks of Macpherson, J. in Queen v. Sham Bagdi (1873) 13 B.L.R. App. 19 'If we are to interfere in every case of doubt, in every case in which it may with propriety be said that the evidence would have warranted a different verdict, then we must hold that real trial by jury is absolutely at an end, and that the verdict of a jury has no more weight than the opinion of assessors.'
19. We are of opinion that in this case the verdict of the jury is not in defiance of the probabilities of the case, and we accordingly acquit the accused.