Lancelot Sanderson, C.J.
1. Panchu Das and Goberdhone Singh were convicted by the majority of the jury, 7 to 2, at a trial at the Criminal Sessions presided over by Chaudhuri, J., of offences under Sections 302, 120B and 380, Indian Penal Code.
2. The indictment contained 7 counts and included charges of murdering: one Dakho Bewa, a woman of the town, on the 10th December 1914, conspiring to rob her, theft of property from her house and abetment of the offenses of murder and theft.
3. The learned Judge admitted certain evidence which was objected to by learned Counsel representing the accused persons but intimated that, as the questions were not severed by any direst Indian authority, he would, if necessary, reserve them for the consideration of the Court. This reference accordingly was made by the learned Judge. The case for the prosecution is set out by the learned Judge in the reference and need not be repeated in detail by me.
4. An important feature of the prosecution case was, that the first accused introduced himself to the deceased woman as a Raja's son or a Zemindar's son and, a few days after, the first accused began visiting the diseased woman; the second accused began coming with him and was introduced as his Durwan. The allegation was that, on the night of 9th December or morning of 10th December 1914, the two accused murdered the diseased woman, or that one of them murdered her and the other abetted the murder, and that they robbed her of practically all she possessed and decamped. Enquiries were made by the Police, but without getting any case of the alleged murderers and the enquiries were dropped in July 1915. The second accused was arrested in December 1918 in connection with a complaint of theft made by a woman of the town, Shamasundari, against two persons described as a Babu and a Durwan. In the course of enquiries, the Police came across another woman, Niroda, who made a similar complaint against two persons, a Babu and a Durwan.
5. The Police, on further enquiries being made, came across a third woman, Sindhubala, who made a similar complaint of theft against two persons.
6. The Inspector of Police obtained a photograph from Sindhubala of one of the persons whom she charged; he showed it to Niroda and Shamasundari both of whom identified it as that of the Babu against whom they complained.
7. In the course of his enquiries, the Inspector of Police got certain information from a Head Constable who had something to do with the enquiry into the murder of Dakho.
8. He obtained the addresses of Manoda and Annoda, who are two of the women who lived on the ground floor of Dakho, the murdered woman's house, and on the 9th January 1919 he showed them the photograph. They identified it as that of the Babu who used to visit Dakho in December 1914 and who was with her on the night of the murder.
9. On the 11th March 1919 the first accused was arrested.
10. The murder was on the 10th December 1914. Sindhubala's charge related to events of September 1916. Niroda's was February or March 1918 and Shamasundari's October/ November 1918.
11. It was mainly in relation to part of the evidence of the three women, Sindhubala, Niroda and Shamasundari, and part of the evidence of Inspector M. N. Mukerjee that this reference, was made.
12. The grounds on which the evidence was said to be admissible are contained in the reference, and are set out at pages 278 and 279 of the paper-book as follows:
(1) How the two accused were discovered.
(2) That they had 'hunted in couples' and, in several instances, taken part in thefts from rich prostitutes, a series of incidents from 1914 to 1918 that they had lived together and had transactions together that a system had been followed by them that they used to go about together under different names and they had associated together with an evil motive, namely that of committing theft from rich prostitutes.
13. The learned Standing Counsel submitted that his case was that the two accused had conspired to rob Dakho, that the motive for their coming to her house was commitment of theft and, he submitted, it was open to him to prove their identity and subsequent complaints of thefts made by other prostitutes.
14. He submitted that, although evidence tending to show that the accused had been guilty of criminal acts other than those covered by the indictment was not admissible, it was admissible upon the issue whether the acts charged against the accused were designed or accidental and to rebut any other defence otherwise open to them, namely, amongst other things, that they did not know each other, but had met in the woman's house by accident. He submitted that he was entitled to give evidence to rebut the defence of innocent, association.
15. The nature of the evidence may be taken from that of Shamasundari, which is referred to in the reference, viz., that accused No, 1 introduced himself as a Babu and accused No. 2 was brought in by him as his Durwan, that she was in the keeping of accused No. 1. That one day they disappeared and the woman discovered money and ornaments missing.
16. The learned Judge admitted the evidence as showing identity, design and motive and illegal association, and that a system had been pursued by them.
17. It was first argued that the evidence of the three above-named women was admissible under Section 15 of the evidence Act. In my judgment, this argument should not be acceded to, In this case there was no question of the Act being accidental or intentional.
18. The woman was undoubtedly murdered in a brutal way: her head was practically severed from her body: the deceased woman's room had been rifled and, practically, everything she possessed both in her room or on her person had been stolen. There was no room for any doubt that the acts with which the accused were charged were intentional. The only real question was, who was the person or who were the persons who committed the crime.
19. Next, it was urged that Section 14 of the evidence Act applied. In my judgment, this section does not apply. There was nothing in the evidence of the three women to show the state of mind of the accrued towards Dakho, or with reference, to the particular matter in question. The learned standing Counsel for the Crown then referred to Sections 9 and 11(2) of the evidence Act and entitled that the evidence of the three above-mentioned women was admissible to prove the identity of the two persons who were in Dakho's house on the first floor on the night of the murder.
20. In this connection, in my judgment, the dates are material. As already mentioned the murder was in December 1914. The first incident, in respect of which the evidence which was objected to related, was in September 1916, viz., Sindhubala's charge, nearly two years after the murder, and the other two women's evidence related to 1918.
21. In this case the main charge was one of murder: it was admitted by the learned Standing Counsel that the evidence of the three above-mentioned women, which was objected to, could not be material to that charge as the evidence of the three women related to charges of theft only, but it was contended that it was admissible to show that the persons who robbed the three above-mentioned women, were the persons who committed the theft on the 10th December 1914.
22. It was alleged that in each case the offenders passed themselves off as a Babu and a Durwan, and that in each case the complainant was a woman of the town who was visited by the algid Babu and that, consequently, was highly probable that these two men were the same as those who were living in Dakho a house at the time of the murder Having regard, however, to the dates of the incidents alleged by the three above-mentioned women, and the nature of their evidence, in my judgment, it was not admissible under Section 9 or under Section 11 of the Indian Evidence Act.
23. There was other evidence to which objection was taken, but in view of the opinion which I hold as to the evidence already dealt with, it is not necessary for me to consider the other evidence.
24. During the course of the argument we intimated to the learned Counsel that we had come to the conclusion that some of the evidence was improperly admitted: and the question then arose as to whether this Court could order a new trial, which in this case would have been the most desirable tonne. The learned Standing Counsel, how-ever submitted that we had no power to direst a new trial, in which submission the learned Counsel for the convicted men concurred.
25. In view of the derision of this Court in Queen v. Hurribole Chunder Ghose 1 C. 207 : 25 W.R. 36 Cr. 1 Ind. Dec. (N.S.) 132 and Fateh Chand v. Emperor 38 Ind. Cas. 945 : 44 C. 477 at p. 489 : 24 C.L.J. 400 : 21 C.W.N. 33 : 18 Cr. L.J. 385, I am bound to hold that, on this reference, it is not open to us to direct a new trial. The merits of the case were then argued and the learned Standing Counsel submitted that we should uphold the conviction in view of the evidence as to whish there was no question, and excluding the evidence to which Objection was taken.
26. In my judgment the concoctions should not be upheld. The accused persons were entitled to be tried by a jury. They were in fact tried by a jury: the jury were not unanimous, the nature of the evidence, whish I have referred to and which I consider was wrongly admitted, is such that, in my judgment, it is impossible to say that the verdict of the majority of the jury may not have been affected by it.
27. There is evidence to which no objection has been raised, as to the identity of the accused persons as being the two men who were in the deceased woman's house on the night of the murder, as, for instance, the evidence of Annoda, Manoda, Keora and P.C. Pal. Criticisms have been made on the evidence of the witnesses by the learned Counsel for the accused, as, for instance, that the method of obtaining the identification of the photograph by the women Annoda and Manoda was not satisfactory. The evidence of P.C. Pal who was described by the learned Standing Counsel as the best witness as to the identity of the first accused has been criticised as being unreliable, it was not suggested that P.C. Pal was not speaking the truth to the best of his recollection, but it was pointed out that he saw the first accused on two occasions only. Some four years before, he gave evidence that he did not recogaize the photograph, when it was shown to him, as that of the first, accused and when the first accused was brought in a gharry to P.C. Pal's house, even then he did not at first recognize him.
28. I have considered the evidence of the witnesses to whish no objection has been raised. I have not seen these witnesses,, but only the written record of their evidence: the jury did see the witnesses and their demeanor in the witness-box. The majority may have believed these witnesses and may not have been influenced by the evidence of the witnesses which was, in my judgment, improperly admitted.
29. But, on the other band, in this case the charges of murder and theft were tried together and the evidence which, in my judgment, was improperly admitted, was of such a nature that it is possible that it may have had considerable influence upon the minds of the majority of the jury who were in favour of a conviction. In this case, in my judgment, it is not possible to say with reasonable certainty that the majority of the jury would have accepted and acted upon the evidence as to identity, to which no objection was taken, if the evidence which, in my judgment, was improperly admitted, bad not also been presented to them. In my judgment, therefore, the convictions of Panchu Das and Goberdhone Singh should be set aside.
30. In this case, in view of the admission of the learned Standing Counsel that the evidence, which was objected to, was not admissible on the charge of murder, it would have been desirable to try the charge of murder separately.
31. The facts necessary for the determination of the questions which arise on this reference under Clause 25 of the Letters Patent, lie in a narrow compass and may be briefly recited. On the night of the 13th December 1914 Dakho Bawa, a woman of the town, who lived at 29, Premchand Boral Street, in this city, was murdered. There was an inquest before the Coroner, when the jurors held that her death had been sensed by decapitation by some person unknown under such circumstances that the act amounted to murder. The Police held an enquiry which proved fruitless and was dropped as the culprits could not be traced. On the 29th December 1918 the second accused was arrested in the course of an enquiry by the Police in another matter and the first accused was similarly arrested on the 11th March 1919. Acting on information received, and on statements alleged to have been made by the first accused, the Police discovered in the possession of the accused a shawl and ornaments said to have belonged to the murdered woman. The case was heard by the Chief Presidency Magistrate and the accused were committed to take their trial before this Court in connection with the murder of the deceased woman. They were tried before Mr. Justice Chaudhari and a special jury on the following charges:--namely, (1) that the accused had committed au offence under Section 120B, Indian Penal Code, as they had conspired to rob the woman; (2) that the accused had committed an offense under Section 302, Indian Penal Code, as they bad murdered the woman; (3) that the first accused had committed the murder and the second accused had abetted the offense; (4) that the second accused had committed the murder and the first accused had abetted the offence; (5) that the two accused had committed theft in a building used as a human dwelling; (6) that the first accused bad committed theft and the second accused had abetted the offence, and (7) that the second accused had committed theft and the first accused had abetted the offence. The jury, by a majority of seven against two, found both the accused guilty of murder, conspiracy and theft; their verdict was, not taken in respect of the charges of abetment. Mr. Justice Chaudhuri thereupon (sic) each accused to transportation for life under Section 362 and to rigorous imprisonment for five years under each of the other sections, the sentences to run concurrently. But, as objection had been taken to the admissibility of certain evidence, the learned Judge reserved the point under Clause 25 of the Letters Patent. For the appreciation of the precise question of admissibility of the evidence, it is essential to state the facts in fuller detail.
32. The case for the prosecution is, that, in November or December 1911, the first accused became the paramour of the woman and introduced himself as the son of a Raja or Zemindar. After a few days, the second accused began to come with the first accused and was introduced as his Durwan. The house where the woman lived was two storied; she used to occupy the rooms on the first floor; the ground floor rooms had been let out to other women of the town. The two accused used to come to the house at 10 30 or 11 at night and lived upstairs. The first accused slept in the same room with the woman, while the second used to occupy an adjoining room. No other persons lived in the upper floor. After the first accused began to visit her, she tried to turn out the tenants, one of whom actually left; she also issued an order that the outer door of the house must be looked from inside at midnight. On the 9th December 1914, the two accused came as usual in the evening at about 10 30 or 11, and the outer door was thereafter looked up from inside by the second accused at midnight. Next morning, the outer door was found open but the room of the diseased woman was padlocked. This was unusual; but the other women in the house thought that Dakho might have gone to see the landlord. A search was made for her in the house of the landlord and also in the bathing platforms on the river bank; but as no trace could be found, the Police WAS eventually informed by the paramour of one of the other women in the house. The Police name in the afternoon, forced open the door of her room, found the woman dead, her body covered with a blanket and her head practically completely severed from the body. All her hexes were open and the ornaments and clothes were gone except a pair of ear-rings in her ears. At the trial before this Court, evidence was adduced to prove these allegations; but, on behalf of the Crown, leave was obtained to give evidence also on the following points, namely, (1) the circumstances which led to the discovery and arrest of the two accused; and (2) facts to establish that the two accused bad, as it was put, hunted in couples, and in several instances taken part in thefts from rich prostitutes, that is, a series of incidents from 1914 to 1918 were proved to establish that they had lived together and had transactions together; that a system had been followed by them; that they used to go about together under different names and had associated together with an evil motive, namely, the commission of thefts from rich prostitutes. On behalf of the accused, objection was taken, that such evidence was not admissible under the provisions of the Indian Evidence Act. The objection was overruled, and, besides evidence of association, evidence was permitted to be given to show that the two accused went together to the house of prostitutes, the first introducing himself as a Babu and taking the second with him as his Durwan; that they subsequently disappeared and this was followed by the discovery of loss of money and ornaments by the women concerned. The substantial point for determination is, whether evidence of this description was admissible to prove the guilt of the accused.
33. At the commencement of the hearing before us, a question of procedure was raised. We ruled that the Counsel for the prisoner should begin. This is in accordance with the decision in R. v. Gate Fulford (1856) Dears & B, 74 : 7 Cox. C.C. 230 where the Court for the Consideration of Crown Cases Reserved ruled, that Counsel for the prisoner begins (and has a reply) 'that being the invariable practice of the Court.'
34. It is necessary to premise that the question of admissibility of the evidence must be determined with reference to the provisions of the Indian Evidence Act, This is manifest from the preamble and from the provisions of Sections 2 and 3. In the case of Rani Lekraj Kuer v. Baboo Mahpal Singh 7 I.A. 63 at p. 70 : 5 C. 744 at p. 754 : 6 C.L.R. 593 : 4 Sar. P.C.J. 93 : 3 Suth. P.C.J. 704 : Rafique and Jackson's P.C. No. 61 : 4 Ind Jur. 423 : 2 Ind. Dec. (N.S.) 1081 the Judicial Committee observed as follows:
The Indian Evidence Act has repealed all rules of evidence not contained in any Statute or Regulation and the plaintiff must, therefore, show that these papers are admissible under some provision of the Indian Evidence Act.
35. Equally explicit is the observation of Jackson, J., in the case of Empress v. Ashootosh Chuckerbutty 4 C. 483 at p. 491 (F.B.) : 3 C.L.R. 270 : 1 Shome L.R. 79 : 2 Ind. Dec. (N.S.) 307 which was heard by a Full Bench:
In considering such questions as these, it appears to me that embarrassment and difficulty will be greatly lessened, if, instead of assuming the English law of evidence, and then enquiring what changes the Evidence Act has made in it, we regard, as I think we are bound to do, the Act itself as containing the scheme of the law, the principles, and the application of these principles to the cases of most frequent occurrence.
36. The view that the Indian evidence Act does in effect prohibit the employment of any kind of evidence not specifically authorized by the Act itself has been emphasizad in other oases: Queen Empress v. Abdullah 7 A. 385 at p. 394 : A.W.N. (1885) 78 : 4 Ind. Dec. (N.S.) 692; Muhammad, Allahdad Khan v. Muhammad Ismail Khan 10 A. 289 at p. 325 : 6 Ind. Dec. (N.S.) 193; Collector of Gorakhpur v. Palakdhari Singh 12 A. 1 at p. 11 : 6 Ind. Dec. (N.S.) 751; Imperatrise v. Pitamber Jina 2 B. 61 at p. 64 : 1 Ind. Dec. (N.S.) 469. We must, consequently, examine, under which provision, if any, the evidence was admissible.
37. Reliance has been placed by the Crown on Section 15 which is in these terms,--
When there is a question, whether an Act was accidental or intentional or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.
38. This is clearly of no avail. There was no room for any hypothesis that the death of the woman, whoever might have caused it, was either accidental or unintentional. The medical evidence makes it incontestable that the Act amounted to deliberate murder. No question could, consequently, arise whether the Act was accident al or intentional or was done with a particular knowledge or intention. In so far as the charge of theft was concerned, there was also no question, whether the Act was accident al or intentional or was done with a particular knowledge or intention. Further, we cannot overlook that no murder was committed in the three subsequent instances which the three women of the town Shamasundari, Niroda and Sindhubala came forward to narrate. Consequently, the Act of murder could not by any stretch of language be deemed to form part of a series of similar occurrences. Mr. Das fully appreciated this difficulty and sought to utilize Section 15 only in respect of the charge of theft, although he ventured to express the hope that, if the evidence was admitted under Section 15 for this limited purpose, the jury would be so influenced thereby, that they would in view of the others circumstances of the case, bring forward a verdict of guilty as well on the charge of murder as on the charge of theft.
39. The Standing Counsel, in other words, wished to achieve by indirect means what he could not possibly attain directly even upon the most favourable interpretation of Section 15. This clearly should not be permissible and indicates that, in the present case, separate trial of the charges of murder and theft was desirable as has been pointed out by the learned Chief Justice at the conclusion of his judgment. There are, however, other difficulties equally insuperable in his way. Section 15 is of to assistance unless it is established that the Act forms part of a series of similar occurrences. It is well established that the gist of the section is that, unless there is a sufficient and reasonable connection between the fact to be proved and the evidentiary fact, that is, unless, there is in substance some common link they cannot form a series. There was also the undeniable fast that each of the occurrences bad its own special features so that they could not properly be deemed similar occurrences.
40. Reliance was next placed on behalf of the Crown upon Section 14, which is in these terms,--
Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.
Explanation 1.--A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.
Explanation 2.--But where, upon the; trial of a person accused of an offense, the previous commission by the accused of an offence is relevant within the, meaning of this section, the previous conviction of such person shall also be a relevant fact.
41. It is plain that this section is of no assistance. The existence of a state of mind such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will, towards a person, or the existence of a state of body or bodily feeling was not and could not be in issue in the circumstances of the case. The defenee was a complete denial and no question of the character contemplated by Section 14 did or could possibly arise the first explanation to the section creates a further difficulty, because the relevant fast proved to show the existence of a relevant state of mind must show that the state of mind exists not generally but in reference to the particular matter in question. The evidence introduced was plainly not of this description. The illustrations (i), (ii), (o) and (p) clearly show that the evidence could not be admitted. Reference may particularly be made to the last two illustrations,--'A is tried for the murder of B by intentionally shooting him dead. The fact that A, on other occasions, shot at B is relevant, as showing his intention to shoot B but the fact that A was in the habit of shooting at people with intent to murder them is irrelevant.'
A is tried for a crime; the fact that he said something indicating an intention to commit that particular crime is relevant, but the fast that he said something indicating a general disposition to commit crimes of that class is irrelevant.
42. These illustrate the elementary principle that evidence of general disposition, habit and tendencies is not relevant.
43. From the statement of the case by Mr. Justice Chaudhuri it appears that Sections 14 and 15 were the only sections which had been referred to, and I have, consequently, considered up till now, the question of their true construction. Upon a plain reading of these sections, I feel no doubt that they do not, make the evidence admissible. This conclusion is supported by the decisions in Empress v. Moodeliar 6 C. 655 : 8 C.L.R. 197 : 4 Shome L.R. 125 : 3 Ind. Dec. (N.S.) 425; Baharuddin Mandal v. Emperor 22 Ind. Cas. 187 : 18 C.L.J. 578 : 15 Cr. L.J. 43 and Emperor v. Abdul Wahid Khan 12 Ind. Cas 937 : 34. A. 93 : 8 A.L.J. 1269 : 12 Cr. L.J. 611. In the first of these eases Sir Richard Garth, C.J., pointed out that Section 14 applies to that class of cases where a particular Act is more or less criminal or palpable according to the state of mind or feeling of the person who does it, and added that the Court must be very careful not to extend the operation of the section to other oases where the question of guilt or innocence depends upon actual facts and not upon the state of a man's mind or feeling. Mr. Justice Mitter, if I have read his judgment correctly, did not really dissent from this view the same line of reasoning was adopted in the second case, where it was ruled that proof cannot be offered of an independent offence to show that by reason of such independent offense the accused is more likely to have committed the one for which he is on trial; in other words, evidence of such collateral offence cannot be received as substantive evidence of the offence on trial, though, under Section 14, evidence may be given of intention and like matters where the factum of such intention or like matters is relevant. The destination between oases where intention is, and cases where intention is not, relevant is illustrated by the decisions in Emperor v. Debendra Pershad 2 Ind. Cas. 601 : 35 C. 573 : 13 C.W.N. 973 : 9 C.L.J. 610 : 10 Cr. L.J. 91 and Emperor v. Abdul Wahid Khan 12 Ind. Cas 937 : 34. A. 93 : 8 A.L.J. 1269 : 12 Cr. L.J. 611 which lie on opposite sides of the dividing line. Reference may also be made to the decision of West, J. in R. v. Parbhudas 11 B.H.C.R. 90 where he emphasized the inadmissibility of evidence of one crime (not reduced to legal certainty by a conviction) to prove the existence of another unconnected, even though cognate, crime. On behalf of the Crown reliance was, however, placed upon the decisions in Makin v. Attorney General for New South Wales (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; R. v. Ball (1911) A.C. 47 at p. 52 : 80 L.J.K.B. 691 : 103 L.T. 738 : 75 J.P. 180 : 22 Cox. C.C. 366 : 55 S.J. 139 : 27 T.L.R. 162; reversing R. v. Ball (1910) 5 Cr. App. Rep. 238, R. v. Smith (1917) 11 Cr. App. Rep. 229 : 84 L.J.K.B. 2153 : 114 L.T. 239 : 80 J.P. 31 : 25 Cox C.C. 271 : 59 S.J. 704 : 31 T.L.R. 617; B v. Bond (1906) 2 K.B. 389 : 75 L.J.K.B. 693 : 95 L.T. 296 : 54 W.R. 586 : 70 J.P. 424 : 21 Cox C.C. 252 : 22 T.L.R. 633 and R. v. Thompson (1917) 2 K.B. 630 : 86 L.J.K.B 1321 : 117 L.T. 575 : 81 J.P. 266 : 61 S.J. 647 : 33 T.L.R. 506 which has been affirmed by the House of Lords in Thompson v. B. (1918) A.C. 221 : 87 L.J.K.B. 478 : 118 L.T. 418 : 82 J.P. 145 : 62 S.J. 266 : 13 Cr. App. Rep. 61 at p. 66 : 34 T.L.R. 204, No useful purpose would be served by a detailed analysis of these decisions; most of them, along with other oases, were reviewed by this Court in Amritalal Hazra v. Emperor 29 Ind. Cas. 513 : 42 C. 957 at p. 997 : 21 C.L.J. 331 : 19 C.W.N. 676 : 16 Cr. L.J. 497 where the principles de-double there from as to the law administered in England were formulated in the following terms:
Facts similar to but not part of the same transaction as the main fact, are not in general admissible to prove either the occurrence of the main fact or the identity of its author. But evidence of similar facts, although in general inadmissible to prove the main fact or the connection of the parties therewith, is receivable, after evidence, aliunde on these points has been given, to show the state of mind of the parties with regard to such fact; in other words, evidence of similar facts may be received to prove a party's knowledge of the nature of the main fact or transaction, or his intent with respect thereto. In general, whenever it is necessary to rebut even by anticipation the defence of accident, mistake or other innocent condition of mind, evidence that the defendant has been concerned in a systematic course of conduct of the same specific kind as that in question may be given, To admit evidence under this bead, however, the other Acts tendered must be of the same specific kind as that in question and not of a different character and the acts tendered must also have been proximate in point of time to that in question.
44. I have re examined these cases and I see no reason to doubt the accuracy of the above statement, which fully accords with the decisions of the Court of Criminal Appeal in the cases of R. v. Rodhy (1913) 3 K.B. 468 : 9 Cr. App. Rep. 69 : 82 L.J.K. B. 1070 : 109 L.T. 476 : 27 J.P. 465 : 23 Cox C.C. 574 : 58 S.J. 51 : 29 T.L.R. 700 and R. v. Ellis (1910) 2 K.B. 746 : 5 Cr. App. Rep. 41 : 79 L.J.K.B. 841 : 102 L.T. 922 : 74 J.P. 388 : 26 T.L.R. 535 as also other recent cases, such as Thompson v. B. (1918) A.C. 221 : 87 L.J.K.B. 478 : 118 L.T. 418 : 82 J.P. 145 : 62 S.J. 266 : 13 Cr. App. Rep. 61 at p. 66 : 34 T.L.R. 204; R. v. Fisher (1910) 1 K.B. 149 : 79 L.J.K.B. 187 : 102 L.T. 111 : 74 J.P. 104 : 26 T.L.R. 122 : 22 Cox C.C. 270; R. v. Mason (1914) 111 L.T. 336 : 78 J.P. 389 : 24 Cox C.C. 305; R. v. Baird (1915) 84 L.J.K.B. 1785 : 113 L.T. 608; Perkint v. Jeffery (1915) 2 K.B. 702 : 84 L.J.K.B. 1554 : 113 L.T. 456 : 79 J.P. 425 : 31 T.L.R. 444. It is plain that the principles so enunciated are of no assistance to the precaution. On the other hand, there is an important passage in the judgment of Kennedy, J., in the ease of R. v. Bond (1906) 2 K.B. 389 : 75 L.J.K.B. 693 : 95 L.T. 296 : 54 W.R. 586 : 70 J.P. 424 : 21 Cox C.C. 252 : 22 T.L.R. 633 to which the attention of the Standing Counsel was drawn by the learned Chief justice in the course of the argument, as destructive of his contention:
The admissibility, not merely the weight, of the evidence depends upon the evidence of such conduct as would authorize a reasonable inference of a systematic pursuit of the tame criminal object.
45. There is thus no escape from the position that neither Section 14 nor Section 15 of the Indian Evidence Act is of any assistance to the prosecution.
46. The Standing Counsel was finally con-strained to invoke the aid of Sections 9 and 11. Reliance was placed upon the rule prescribed by Section 9 that facts which establish the identity of any thing or person whose identity is relevant, are relevant in so far as they are necessary for that purpose. This does not advance the argument for the prosecution. No question of identity arises till the offenders who committed the crime under investigation are ascertained by independent evidence Section 11 is equally unavailing. That section provides that facts not otherwise relevant are relevant if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fast highly probable or improbable. As was pointed out by West, J., in R. v. Parbhudas 11 B.H.C.R. 90, the section is no doubt expressed in terms so extensive that any fact which can by a chain of ratiocination be brought into connection with another so as to have a bearing upon a point in issue, may possibly be held to be relevant within its meaning. But the connections of human affairs are so infinitely various and so far reaching that thus to take the section in its widest admissible sense would be to complicate every trial with a mass of collateral enquiries, limited only by the patience and the means of the parties. That such an extensive meaning was not intended is possibly indicated by the fact that the illustrations do not go beyond oases familiar in the English Law of Evidence; Queen-Empress v. Varjiram 16 B. 414 : 8 Ind. Dec. (N.S.) 755. A restriction is further obviously imported by the use of the expression highly probable or improbable. In the case before us, what is the substance of the matter? A and B are charged with theft committed in 1914 in the house of a prostitute; evidence is brought forward to show that C and D committed a theft in toe house of another prostitute in 1918 in somewhat similar circumstances. I am not prepared to hold that the latter evidence is admissible either under Section 9 or under Section 11 to prove that A and B are the same persons as C and D. I hold, accordingly that Sections 9 and Hare of no greater assistance to the prosecution than Sections 14 and 15.
47. The question next arises, what are the functions of this Court in such circumstances? The answer depends upon the true constructions of Clauses 25 and 26 of the Letters Patent. The matter was reviewed in my judgment in the case of Fateh Chand v. Emperor 38 Ind. Cas. 945 : 44 C. 477 at p. 489 : 24 C.L.J. 400 : 21 C.W.N. 33 : 18 Cr. L.J. 385, I then came to the conclusion that the obvious intention of the clauses, to be gathered from their plain language, was that the case reserved or certified should be finally decided on review and not remitted for re-trial. This was in accord with the view taken in a long line of cases in this Court and elsewhere; R. v. Navroji 9 B.H.C.R. 358; Imperatrix v. Pttamber Jina 2 B. 61 at p. 64 : 1 Ind. Dec. (N.S.) 469; Emperor v. Narayan Raghunath 32 B. 111 : 9 Bom. L.R. 789 : 6 Cr. L.J. 164 : 2 M.L.T. 414; Queen v. Hurribole Chunder Ghose 1 C. 207 : 25 W.R. 36 Cr. 1 Ind. Dec. (N.S.) 132; Queen-Empress v. O'Hara 17 C. 642 : 8 Ind. Dec. (N.S.) 967. Upon a fresh consideration of the subject, I see no reason to resile from the opinion previously expressed by me. This view, it may be added, also accords with the accepted interpretation of Section 2 of the Crown Cases Act, 1843, whish furnished the model for the provisions of Clauses 25 and 26 of our Letters Patent R. v. Saunders (1899) 1 Q.B. 490 : 68 L.J.Q.B. 296 : 80 L.T. 28 : 63 J.P. 150 : 15 T.L.R. 186; R. v. Gibson (1887) 18 Q.B.D. 537 : 56 L.J.M.C. 49 : 56 L.T. 367 : 35 W.R. 411 : 16 Cox C.C. 181 : 51 J.P. 742 ; though I am not unmindful that in R. v. Mellor (1858) Dears & B. 468 : 7 Cox C.C. 454 : 27 L.J.M.C. 121 : 4 Jur. (N.S.) 214 : 6 W.R. 322 and R. v. Yeadon (1861) Leigh & Cave 81 : 9 Cox C.C. 91 : 31 L.J.M.C. 70 : 7 Jur. (N.S.) 1128 : 5 L.T. 329 : 10 W.R. 64, the Court for Consideration of Crown Cases Reserved, granted a venire de novo under very exceptional circumstances which vitiated the trial as conducted in a manner unknown to law. See, however, the decisions of the Judicial Committee in R. v. Bertrand (1867) 1 P.C. 520 : 4 Moo. P.C. (N.S.) 460 : 36 L.J.P.C. 51 : 16 L.T. 752 : 16 W.R. 9 : 10 Cox C.C. 618 : 16 E.R. 391 and R. v. Murphy (1869) 2 P.C. 535 : 6 Moo. P.C. (N.S.) 177 : 38 L.J.P.C. 53 : 21 L.T. 598 : 17 W.R. 1047 : 11 Cox C.C. 372 : 16 E.R. 693 which dissented from R. v. Scaife (1851) 17 Q.B. 238 : 2 Den. C.C. 281 : 20 L.J.M.C. 229 : 15 Jur. 607 : 5 Cox C.C. 243 : 117 E.R. 1271. But, apart from this analogy, I hold, on the plain language of Clauses 25 and 26 of the Letters Patent, that the intention was that the case should be finally decided on review and not remitted for re-trial.
48. This leads me on to the next point, namely, can the Court on review, examine the evidence and determine whether, after exclusion of the inadmissible evidence, the residue is sufficient to justify the conviction? The Standing Counsel has argued that the Court is not merely competent, but is really bound to follow this procedure. On behalf of the accused it has not been disputed that this contention accords with the numerous, decisions previously mentioned, but we bays been pressed to hold that they were overruled by implication by the Judicial Committee in the case of Subrahmania v. King-Emperor 25 M. 61 : 5 C.W.N. 866 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 2 Weir 271 : 8 Sar. P.C.J. 160 (P.C). Reliance has also been placed upon the observations of the Judicial Committee in Makin v. Attorney General for New South Wales (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 where they emphatically condemned the transference, from the Jury to the Court, of the determination of the question, whether the evidence, that is, what the law regards as evidence, established the guilt of the accused. The question thus raised is not free from difficulty and was left open in the case of Fateh Chand v. Emperor 38 Ind. Cas. 945 : 44 C. 477 at p. 489 : 24 C.L.J. 400 : 21 C.W.N. 33 : 18 Cr. L.J. 385 as the evidence there was manifestly insufficient to support the conviction. In the case before us the question has been re-argued and I have arrived at the conclusion that the Judicial Committee did not, by their decision in Suhrahmania v. King Emperor 25 M. 61 : 5 C.W.N. 866 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 2 Weir 271 : 8 Sar. P.C.J. 160 (P.C.), overrule by implication the series of cases in Calcutta and in Bombay where the High Court had in eases reserved or certified, reviewed the evidence and determined the question of guilt of the accused. The decision of the Judicial Committee must be limited to cases of the type then before them, namely, where the trial had been conducted in a mode entirely prohibited by law, and cannot be extended to cases where evidence had been erroneously received or improperly rejected. If this view were not adopted, the result would follow that, wherever evidence, however trifling its effect, had been erroneously received or excluded the Court would be constrained to quash the conviction and sentence and set free the accused as no re-trial could be ordered Such a conclusion would directly contravene the principle enunciated in Section 167 of the Indian evidence Act,--
The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision or that, if the rejected evidence had been received, it ought not to have varied the decision.
49. This provision, by the very generality of its terms, applies as mush to Criminal as to Civil cases Queen v. Hurribole Chunder Ghose 1 C. 207 : 25 W.R. 36 Cr. 1 Ind. Dec. (N.S.) 132; Empress v. McGuire 4 C.W.N. 433; R. v. Navroji 9 B.H.C.R. 358; Queen-Empress v. O'Hara 17 C. 642 : 8 Ind. Dec. (N.S.) 967; Imperatrix v. Pitamber Jina 2 B. 61 at p. 64 : 1 Ind. Dec. (N.S.) 469. We must, consequently, hold that it is incumbent on this Court to investigate whether, independently of the evidence objected to and admitted, there was sufficient evidence to justify the verdict of the jury.
50. When we examine the evidence, we must, as the learned Chief Justice has pointed out consider whether we may, with reason able certainly, hold that, even if the evidence improperly admitted had been excluded, the jury, upon the residue of the evidence, would have brought in a verdict of guilty. If this stand-point were not adopted the result; would be that in every case where evidence had been wrongly admitted and the question was on that ground brought up for review, the accused would be practically deprived of the benefit of what is called by Lord Hersebell, L.C., 'the much cherished right of' trial by Jury in Criminal cases' Makin v. Attorney- General for New South Wales (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. The Judges would in truth be substituted'' for the jury, the verdict would become theirs and theirs alone and would be arrived at upon a perusal of the evidence without any opportunity of seeing the demeanor of the witnesses and weighing the evidence with the assistance afforded thereby. This aspect of the matter was emphasized by Sir John Coleridge in R. v. Bertrand (1867) 1 P.C. 520 : 4 Moo. P.C. (N.S.) 460 : 36 L.J.P.C. 51 : 16 L.T. 752 : 16 W.R. 9 : 10 Cox C.C. 618 : 16 E.R. 391 in impressive language which may be usefully re-called,--
The most careful note must often fail to convey the evidence fully in some of its most important elements, those for which the open oral examination of the witness in presence of prisoner, Judge and Jury is so justly prized. It cannot give the look or manner of the witness, his hesitator, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration; it cannot give the manner of the prisoner when that has been important upon the statement of anything of particular moment;...it is, in short, or it may be, the dead body of the evidence, without its spirit, which is supplied, when given openly and orally, by the ear and eye of those who receive it.
51. A grave responsibility, consequently, rests upon the Court when it is called upon to review the case on the evidence under Clause 9,6 of the Letters Patent read with Section 167 of the Indian evidence Act The evidence improperly admitted might have chicly influenced the jury to return a verdict of guilty, and the rest of the evidence, which might on paper appear to the Court subservient to support the conviction might have been reasonably disbelieved by them in view of the demeanour of the witnesses or might have been regarded by them isolated from the foreign matter improperly introduced as wholly insufficient, to justify an inference of guilt. In such circumstances, the right principle to adopt is to ask ourselves whether we can feel certain that, on the residue of the evidence, a reasonable jury would have brought in a verdict of guilty; and this is precisely the test formulated by Issacs, L.C.J., in the case of R. v. Barron (1913) 9 Cr. App. Rep. 236 : 110 L.T. 350 : 78 J.P. 184 : 24 Cox C.C. 83 : 30 T.L.R. 187. In that case evidence of a previous accusation of an offence similar to that charged had been improperly given. In an appeal against the conviction it was held that the evidence was prejudicial to the accused and should not have been admitted, The Lord Chief Justice then added that, as ' we cannot be certain that the jury would have found him guilty, if it had not been admitted' the conviction must be quashed. To the same effect are the following observations of Lord Alverstone, C.J., in the case of R. v. Jamej Campbell 8 Cr. App. Rep. 75. where the appeal was allowed and the conviction quashed on the ground that substantial evidence against the defendant had been improperly admitted:
It is not possible to say that this evidence may not have had a serious effect, it is true there was weighty evidence besides this, but we cannot say that the jury would have returned the same verdict on that evidence alone.
52. The same test has beer adopted and applied in other eases; R. v. Bodley (1913) 3 K.B. 468 : 9 Cr. App. Rep. 69 : 82 L.J.K. B. 1070 : 109 L.T. 476 : 27 J.P. 465 : 23 Cox C.C. 574 : 58 S.J. 51 : 29 T.L.R. 700; R. v. Stephen Norton (1910) 2 K.B. 496 : 6 Cr. App. Rep. 65 : 79 L.J.K.B. 756 : 102 L.T. 926 : 74 J.P. 375 : 54 S.J. 602 : 26 T.L.R. 550.
53. When we examine the evidence in the case before us from this standpoint, what is the position. There is no room for doubt that the evidence improperly admitted was introduced with a view to influence the opinion of the jury, and the character of that evidence justifies the conclusion that, in all human probability, they were influenced thereby. As regards the residue of the evidence it cannot be disputed that there are important contradictions; and this is not strange, as the oral evidence upon the question in controversy, which was one of identification, was adduced more than four years after the alleged incident. The majority of the witnesses who came forward to depose necessarily belonged to a class which does not inspire me with absolute confidence in their testimony, the most respect able amongst them identified the accused neither promptly nor without hesitation; on the other hand, the attempt made by the Police to refresh the memory of some amongst them by photographs and suggestions is by no means reassuring. Finally, we cannot ignore the fact that, even on the whole evidence as adduced at the trial (inclusive of the evidence improperly admitted), the verdict of the jury was not unanimous; the very fact that they disagreed shows that to some mind?, at any rate, there seemed to be doubts in the case. The substance of the matter then is that the residue of the evidence, is by no means conclusive, if there are some considerations in favour of a conviction there are others no less strong in favour of an acquittal; and I am not prepared to say that the Jury would--not might--have come to the same conclusion as they did upon the entire evidence. In such circumstances, in a case of extreme gravity like this, where men are on trial for their lives, I feel no doubt as to the course to be adopted; in my judgment, the conviction and sentence upon both the accused must be quashed.
54. Fletcher, J., agree with Justice Sir Asutosh Mookerji.
55. The following is a short statement of the facts of the case before us:
It is said that the two accused lived for some time about the end of 1914 in the house of a rich woman of the town named Dakho. They and Dakho occupied the first floor and she had prostitute tenants in the ground floor. Dakho became the mistress of accused No. 1 who had introduced himself as a wealthy Babu. He brought accused No. 2 there as his Durwan. On the 10th December 1914 the outer door of the house was padlocked by accused No. 2 at about midnight and both of them were in the upper floor that night. Next morning that door was found open with the padlock hanging from a ring attached to it and the woman's room was found padlocked from outside. The other inmates thought she had gone out, but as she did not return, a search was made for her and the Police were eventually informed. The door was burst open and her dead body was discovered, the head practically completely severed' from the body, and all her valuables gone. The two men were also missing. No trace of them could be found and the Police dropped the investigation in July 1915.
56. I now proceed to state the facts which led to their arrest and trial.
57. On the 14th November 1918 a woman of the town named Shamasnndan complained about a theft from her room of property of considerable value (about Rs. 4,000) against two persons, naming them as Narain Babu and Mahabir Pandey, who had introduced themselves as a rich man and a Durwan Inspector Mahetdra Nath Mukerji was placed in charge of the investigation. In course of that enquiry he came across a woman of the town named Niroda who had a similar complaint and gave the name of another woman named Sindhubala who' also had a similar complaint against a Babu and a Durwan who used to accompany him. The man he said called him-self Probash Kumar Boy alias Birendra Nath Roy. She gave the Police Officer a photograph of the Babu (Exhibit 33). The photograph was shown to Shamasundari and Niroda and they identified it as that of the Babu. This was on the 27th November 1918, Sindhubala mentioned a woman of the name of Kiran who told the officer that she had seen the men living together in a tiled hut at 6, Piarabagan Lane, and took him there on the 28th November 1913. The Officer got that house watched up to the 21st December 1918. No one came there. He then searched the house. Some ornaments were found, amongst them, Exhibits 7 and 9 (a silver tora and a silver goie) and some letters and post-cards, amongst them Exhibits 8 and 9. He received some information and went to Khulna. He returned to Calcutta on the 28th December 1918 and, on some information, watched another house, 19, Goabagan Lane, and arrest-ed the Second accused here next day. On the 5th of January 1919 he got the names of certain persons from another Police Officer who was connected with the investigation of Dakho's murder. On the 9th of January 1919 he showed them the photo-graph, Exhibit 33. They identified it as that of the Babu who had lived with Dakho. The investigation continued: on the 11th of March, at about 11 P.M., he was Bent for by Niroda who had managed to catch hold of accused No. 1 when he visited another woman of the town. The Inspector arrested him and entered a charge against him at once. The accused made a statement and took the officer to premises 5, Patuatola Lane which was searched and a shawl was found. A search Hat (Exhibit 3) was prepared and the accused signed it as Panshanan Das. The shawl is item No. 11 in Exhibit 2. Five photographs were also found, item No. 13 in Exhibit 3. One of these was his and the others of himself and Sindhubala taken together. A receipt for a plaint was also found there. After some farther investigation the ease was sent up for trial. The charges framed against them are under Sections 302,302/114, 120-B, 330/114, Indian Penal Code.
58. The most important point in this case is that of the identity of the two accused. The prosecution gave evidence bow the accused were traced and arrested evidence of Shamasundari, Niroda and Sindhubala in connection therewith was given by the prosecution and it was contended on behalf of the Crown that they were entitled to give evidence, that the two accused went to rich prostitutes together, one introducing himself as a Babu and the other as his Durwan, that they assumed different names at different times, and that these prostitutes missed valuables about the same time as they disappeared. That those were a series of sets showing a system which the two used to pursue. As the matter was not covered by authority in this Court I reserved certain points which are fully set out in my note of reference. It also contains a summary of what was argued and refers to the cases cited.
59. Section 9, evidence Act, says that facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact or which establish the identity of any person whose identity is relevant or which show the relation of parties by whom any snob fact was transacted are relevant, in so far as they are necessary for that purpose.
60. I hold that it was competent for the prosecution in this case to prove facts showing that the two lived together, had business transactions together, that they used to correspond, that they visited rich prostitutes together, one of them introducing himself as a rich Babu and the other as his Durwan, that they were the same persons although they had given different names. These facts are relevant under Section 9 of the Evidence Act for establishing their identity and association. It was open to the defence to say that it was a case of innocent association. The question, therefore, arises 'Is evidence to negative snob defence permissible?' Section 14 leys down that facts showing the existence of any state of mind such as intention are relevant:--Explanation I limits it thus,--A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally but in reference to the particular matter in question. Explanation (2), however, extends it, making the previous conviction of a person a relevant fact where upon the trial of such person the previous conviction is relevant within the meaning of Section 14.
61. In this connection Section 15, evidence Act, is important, it lays down that where there is a question whether an Act was accidental or intentional or done with a, particular knowledge or intention the fast that such Act formed part of a series of similar occurrences in each of which the person doing the Act was concerned is relevant. It is wrong to say that this section only deals with intention as opposed to accident. The words underlined (italicised) were added by Section 2, Act III of 1891, which must not be overlooked in construing Section 15. The ease for the prosecution if, that the two accused used to introduce themselves to rich prostitutes as a wealthy master and servant. One of them used to remain in the room of the prostitute and the other, the Durwan, kept guard. They lived in their houses for some time to gain their confidence and when they found a favourable opportunity committed theft and' disappeared. That is the system they pursued and it is urged that it is competent for the prosecution to prove it in order to show that when they name to Dakho they intended to rob her, and that Section 15 allows such evidence to be given, namely, that in other instances they played a similar part in the houses of other rich prostitutes whose valuables disappeared simultaneously with their disappearance, in order to show intent, guilty knowledge, design or system, and that it is open to the prosecution to rebut the defence that they had met accidentally in Dakho's house, or that they had gore there without any dishonest motive, that is to say, to give evidence of similar incidents although subsequent in date in which they were charged with having committed theft. I agree with that contention and bold that the evidence objected to was rightly admitted. The English cases in support of this view are referred to in my note of reference, I do not see any difference in the Indian Law on flu the subject; No one caw the accused committing the offences they are charged with. The direst evidence is that they were in the house that night and they disappeared the next morning, when the murder and robbery were discovered but the case mainly depends upon collateral circumstances. I understood that my learned colleagues were prepared to hold that there, was no doubt upon the evidence that two men were in the house of the deceased that night and acted in concert and murdered and robbed her. I take it that they hold that those two men whoever they were, conspired to commit theft, committed it and also omitted murder, the motive being theft.
62. No doubt, evidence tending to show that the accused have been guilty of criminal acts other than those covered by the indictment is not admissible unless upon the issue whether the Acts charged against the accused were designed or accidental or unless to rebut a defence otherwise open to them. Makin v. Attorney General for New South Wales (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; R. v. Wyatt (1904) 1 K.B. 188 : 73 L.J.K.B. 15 : 68 J.P. 31 : 52 W.R. 285 : 20 T.L.R. 68 : 20 Cox C.C. 452. In this ease, no doubt, the severed head proved it was murder, and the loss of valuables, theft, but there was something more to be proved, namely, that the motive for the murder was theft and that the two persons who were in the house had combined to commit such theft. The murder and robbery were parts of one transaction, it is the general rule of law to admit evidence of motive. It was urged in this case as it was in Makin v. Attorney General for New South Wales (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 that evidence is admissible of any Acts or doings of the person accused if such Acts or doings are so connected with the transaction under charge or are of a character so similar thereto as to lead to a reasonable inference that the prisoner committed the Act charged, but it is hardly necessary to discuss any general proposition of that character. Section 11, Evidence Act, was invoked in aid by the prosecution but its terms are so general that I am not prepared to use it. In this ease I am satisfied that the evidence was properly laid before the Jury and dissent from the opposite view.
63. Then, the question arises what the Court is to do if the evidence is rejected. Sections 25 and 25 of the Letters Patent deal with the matter. It has been uniformly held in this Court, ever since the case of Queen v. Hurribole Chunder Ghose 1 C. 207 : 25 W.R. 36 Cr. 1 Ind. Dec. (N.S.) 132, that this Court is alone empowered to deal with the remaining evidence and give its final judgment on it, and not the Court below and that an order for retrial is not competent. Although I share the doubt of Pointier, J., as to the correctness of the ruling in Queen v. Hurribole Chunder Ghose 1 C. 207 : 25 W.R. 36 Cr. 1 Ind. Dec. (N.S.) 132, I feel bound by it and subsequent rulings which have been uniformly followed all these years. The Privy Council has not also questioned it in Subrahmania's case 25 M. 61 : 5 C.W.N. 866 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 2 Weir 271 : 8 Sar. P.C.J. 160 (P.C), where it was cited. I think that it is entirely wrong that the accused should thus be deprived of the verdict of a jury and the function of tie jury should by transferred to a Bench of Judges, which has to deal with the residua of the recorded evidence.
64. Section 167, evidence Act, has been held applicable to such case d. It says that we are to determine if there is sufficient evidence to justify the decision independently of the evidence objected to and admitted. I think there is. In so deciding I am keeping the evidence object ed to entirely aside, I told the jury that it would not be improper for them to attach but little value to that part of the case and call attention to the penultimate paragraph of my note of reference.
65. I believe the evidence of identification, although the photograph of the accused No. 1 was shown to Manoda, Annoda, Prafulla and Giribala by the Investigating officer before they were examined in Court. That they took time in identifying him when the photograph was first shown was natural as the man was dressed up when the photograph was taken. It was shown to them more than three years after they had seen him. Prafulla's doubt, when the accused was first shown to him after his arrest, was also due to lapse of time. He had seen the man only on two occasions; on one of such occasions, however he was with the accused for sometime. I do not think the shawl has been sufficiently identified. I place much reliance on the evidence of the silversmith as regards the gote which was found in the box of accused No. 2. The other evidence about the identification is not without value. It is dearly established that these two were well-known to each other and that they given different names to different people and that accused No. 1 is not a Zemindar or a Zemindars son, but a menial servant. The statements made by Manoda, Annoda, Panohu Keora and others to the Police soon after the occurrence I consider of great value. I have no hesitation in holding that both the accused are guilty of the offence of murder, robbery and conspiracy to rob, as charged. It is not for us to speculate what the jury would have done. It is for us to arrive at a decision and, after all, one's own mind is his best standard.
66. I agree with the learned Chief Justice in holding that the evidence to which objection was taken was not admissible.
67. I accept the proposition that this Court has on previous occasion held that it cannot order a re-trail.
68. On the merits, I am satisfied that the two accused before us are the men who caused the unfortunate woman's death. The evidence given by the inmates of the house and by the Doctor is of a convincing nature, and my learned brother who presided at the trial believed the witnesses to be speaking the truth. I do not think it necessary to ask what view a jury would take of the evidence, except so far as the opinion of a hypothetical jury affords a standard of reasonableness. If it were necessary to ask such a question I should hold that of nine reasonable men at least two-thirds would believe the evidence, and, having regard to the terms of the charge delivered by my learned brother, I would go further and hold that, as a matter of fact, the seven jurors who found the accused guilty, found them guilty on the evidence to which objection cannot be taken.