Lancelot Sanderson, C.J.
1. In this case we think that this appeal should be allowed. This is a case which has given us much cause for consideration. It is a serious case, one in which the accused was charged with the offence of arson, for which he has received a very considerable sentence, one which, in my opinion, is not too severe for an offence of this kind, if it were clearly proved that he was guilty of it.
2. Now, the learned Judge has given a very careful and elaborate judgment in this case: and unwilling as I am ever to interfere with the decision of a learned Judge who has had the opportunity of seeing and hearing the witnesses in the Trial Court, in this ease I think there are certain matters which lead us to think that it would not be safe to allow that judgment to stand. First of all, the learned Judge in summing up his conclusion says: 'On these facts I believe the evidence of the Sub-Registrar' (that is the complainant) 'and his servant Asdu, supported as it is by the previous chain of events and the last link in that chain at Rahim Ali's house.' Now, we have come to the conclusion that even assuming that the learned Judge was entitled to admit evidence of those events to which he has referred, as to which I will say a word in a minute, it is clear that he has laid a very considerable stress upon that chain, and it is doubtful whether he would have come to the conclusion at which he arrived, but for the chain of events to which he has referred. Now what is that chain of events? Stating it quite shortly, it is this: apparently this boy wanted the post of the second Pundit in a school but be did not obtain it--I am not going into details--and consequently the learned Judge comes to the conclusion that the boy and perhaps more particularly the boy's father had got a grudge against those who were connected with the school, The school itself was burnt down and the first Pundit's house had been set on fire and the evidence was that the Pundit had great difficulty in getting accommodation, because the people were afraid that if they gave him accommodation, their property might suffer from fire in the same manner. Then the learned Judge refers to two cases: He refers first to the case of Makin v. Attorney General (1894) A.C. 57 : 63 L.J.P.C. 41 : 6 R. 373 : 69 L.T. 778 : 17 Cox. C.C. 704 : 58 J.P. 148 in which some people were charged with the murder of a baby and on a part of their premises the bodies of their dead babies were found. Then he refers to the case of King v. Smith where a man was charged with the murder of his wife by drowning her in her bath, and the evidence relating to the deaths of two of his previous wives had been admitted, And, upon the strength of those two cases, he admitted the evidence relating to the dispute about the school and the previous fires. With great deference to the learned Judge, I do not think that those two cases to which he referred had any bearing upon this case. In both the cases, it is obvious that the previous facts of which the prosecution wanted to give evidence related in a direct manner to the actions of the accused persons, but in this case although there is some evidence that the accused boy had mixed himself up in some way with regard to the theft of some articles from the school, by saying he could give a clue and would secure the return of the missing articles if he were appointed to the post of the second Pundit, there is nothing whatever to connect that boy in any shape or form with the previous fires which occurred in the village. Therefore, I do not see what the evidence of the previous fires in the village has got to do with the present case at all: and that being so, it seems to me that it would not be safe to leave the case as it stands, because we are unable to say that the evidence as to what the learned Judge calls 'the previous chain of events' may not have had an important effect on his mind.
3. Further than that, there are one or two Jacts with regard to the other part of the case, namely the question of identification and also the question of the evidence of the complainant and his servant. These are the points that I mentioned in the course of Mr. Sanyal's argument, which struck me as important.
4. Now, the evidence of the complainant was that he did not ascertain that there was any fire at all until he was close to it. He says that he was at the south-east corner of his compound when he saw the fire. Now, to reach that point he had to walk a considerable distance from the entrance of his compound carrying a lighted lantern in his hand and it is almost impossible to believe that the two people, who were alleged to have set fire to his bari at the south-east corner of the compound, should have remained close to it and not have noticed the man walking down to the point with a lighted lantern in his hand and with nothing to interrupt the view of him and allowed him to come within a couple of yards without their attention being attracted to his presence.
5. Further than that, there is the fact that his servant was also carrying a lighted lantern and he had to come from the other side of the tank which was close to the spot, and it is highly probable that his lighted lantern at 2 o'clock on a dark morning would have thrown light on the atmosphere in such away that anybody, especially those who were about such a nefarious scheme as setting fire to a house, would have seen. This leads me to doubt whether the evidence of the complainant and his servant can be accepted in toto, when the complainant says that he came right upon the two accused within a couple of yards before they discovered his presence.
6. Now, the other point which has appealed to us is the evidence of the servant, and that is this: according to his evidence, he said that he was at the north-western corner of the tank when he first heard the shout of his master, and his master must then have been at the south-eastern corner of the compound. The men who are supposed to have set fire to the bari were then running away in a southerly direction, yet the servant was able to run back and come up to meet one of these men almost face to face. We have some doubts whether that story when looked at from a physical point of view can be accepted in its entirety.
7. For these reasons I think that it would not be safe to allow this conviction to stand. We, therefore, allow this appeal, set aside the conviction and sentence and direct that the appellant be set at liberty.
8. I agree.