1. This is an appeal from a conviction and sentence passed upon the accused Tufani Sheikh on the verdict of the majority of four to one of the Jury who found him guilty under Section 304 of the Indian Penal Code (2nd part).
2. It appears that one Takani Sheikh, who was a man of loose character, was brutally murdered by having his throat cut and his ears cut off and various other injuries inflicted upon him on the 21st of September or rather in the smail hours of the morning of the 22nd September 1910. The deceased was last seen alive in the company of Darbari and Raja and Darbari has been acquitted by the Sessions Judge, and Raja, who was made King's evidence and resiled from all his statements, has been discharged; why, we are unable to comprehend; certainly, some proceedings ought to have been taken against him. On the 26th September 1910, Tufani made a confessional statement before a Magistrate. This confessional statement cannot be reconciled with the medical evidence and it is, therefore, suspicious. He was arrested on the 25th September and he alleges that pressure was brought to bear upon him by the Police to make this statement. Evidence was taken but nothing appeared against Tufani except a statement based apparently upon a rumour in the village that Takani had visited and insulted Tufani's wife and that Tufani was, therefore, annoyed. The Judge refers to this point dealing with the case before the Jury and says: The question is not whether there was an intrigue but whether Tufani believed there was an intrigue.' There was, therefore, nothing for Tufani to answer to, except his own previous confession and this rumour that he was annoyed because Takani had been talking to his wife. But on the 4th October 1910, the Committing Magistrate proceeded to examire Tufani and instead of asking him to explain the circumstance which appeared against him, which was all he had the right to do, under Section 364 of the Code of Criminal Procedure, he commenced the examination by the following question : Did you, Darbari and Raja Sheikh, these three persons, join together and kill Takani Sheikh ?' The next question was : 'Say how you killed Takani Sheikh?' And these two questions elicited a statement which was very much the same as the original confessional statement, except that Tufani then said that Takani had expired before his throat was cut which would render his statement still more incompatible with the medical evidence. But it is clear that this so called examination under Section 364 is wholly inadmissible, and the learned Judge should have pointed out to the Jury that it was so. Instead of that, he told the Jury, the fact that Darbari had retracted his confession at the earliest possible opportunity as contrasted with the fact that the present appellant has repeated his, was the strongest point against him. In fact he says that it is the only evidence against him corrobrated by the evidence of motive. Now, in our opinion, the evidence of motive can never by itself be sufficient to corrobrate any statement which requires corroboration in material particulars. Motive is not a material particular, for it has always been held that it is not the duty of the prosecution to prove any motive, because it is impossible in most cases to assign motives to the conduct of other people. Material corroboration means such corroboration as shows that this individual Tufani not only had some reason to go with the other murderers, but that he did as a matter of fact go with them. Now, there is no evidence as to this whatever. There is no evidence associating him with Durbari and Raja except his own very doubtful confession and the fact that he may have had some grudge against the deceased. The charge is extremely defective, and as regards the second contention, it contains a positive misdirection also as regards the amount of corroboration requird to support the retracted confession. The conviction and sentence must, therefore, be set aside, and we do not think it necessay to order a re-trial inasmuch as there appears to be absolutely no evidence upon which this man, Tufani Sheikh, can be convicted.
3. The appeal is, therefore, allowed, and the accused Tufani Sheikh will be acquitted and released.