1. This is a reference under Section 438, Criminal P. C., made by the District Magistrate of Bankura. The matter arose in the following way : On 4th July 1939 at 6-30 in the morning one Gobinda Lal Rakshit laid an information at the Chhatra police-station that Probodhbala, wife of Annada Prosad Kundu, had committed suicide by hanging herself. The Sub-Inspector went to the spot and found the body of Probodhbala lying in the upper part of the house. He held an inquest and sent the body to Bankura for post-mortem examination. In the original post-mortem report, it was noted that opinion regarding the cause of death was reserved pending the receipt of the results of chemical examination of the viscera of the deceased. But it was also noted in the same report that there was a tear in the pelvic cavity and that the vaginal wall was intensely congested and bruised. The body at the time of the post-mortem examination was in a more or less decomposed condition. After receipt of the report of the Chemical Examiner which showed that there was no poison detected the medical officer who made the post-mortem gave it as his opinion that the woman probably died as a result of shock and haemorrhage resulting from the injuries to the vagina, probably homicidal. On receipt of this opinion, a ease was instituted at the thana on 4th August 1939 which ended in the submission of the final report, that is to say, that there was no evidence on which to send up anybody on a charge of causing the death of the woman.
2. The next step was that on 14th October 1939 the father of the deceased woman lodged a complaint to the effect that his daughter's husband in collusion with some other people, had murdered his daughter on 18th Ashar last and then given out that she had committed suicide. The police, however, failed to send up anybody and the complainant therefore moved the Court by way of a petition of complaint. The matter was enquired into and finally the accused Annada Prosad, husband of the woman, was placed on his trial on a charge under Section 326, Penal Code. The trying Magistrate convicted him under Section 323 of the Code and sentenced him to pay a fine of Rs. 1000 in default six months' rigorous imprisonment. The District Magistrate then made the present reference recommending that the charge should be altered to one under Section 325, Penal Code, and that the sentence which was grossly inadequate should be enhanced.
3. In the first place, it should be pointed out that this Court has no power to alter a conviction under Section 323 to one under Section 325, Penal Code, in the manner recommended by the learned District Magistrate. In the second place, as the recommendation is that the sentence should be enhanced, it follows that the accused is entitled to show cause against his conviction, and this has been done on his behalf in the present case. We have therefore been compelled to examine for ourselves the actual evidence in the case in order to decide whether the conviction was a proper one or not. On consideration of the entire evidence we are forced to come to the conclusion that it does not warrant a conviction under Section 323, Penal Code. In the case under consideration in which the Magistrate convicted, the prosecution attempted to establish that the woman had been killed by her husband at about 3 o'clock in the morning in an upper room in the accused's own house. In order to do so they examined two witnesses who claimed to have seen what actually happened and two other witnesses who deposed that they heard the woman crying out for help. Now, the evidence of the first of these two eye-witnesses is this : that on the night of occurrence at about 3 o'clock in the morning or one prahar before day-light he was in his room next door to the house of the accused. He heard shrieks coming from a room on the upper storey of the accused's house. There was a window in that room and there was a wooden ladder kept below the window. He climbed this ladder and saw through the window the accused beating his wife with a stick. He tried to dissuade the accused and told him not to beat his wife, but the accused went on beating her until the woman fell. The next morning he went to the house and found the woman dead. With regard to this evidence it is, in the first place, highly improbable that a witness would go to the trouble of climbing a ladder, looking through the window, remonstrating with the accused and then merely go back home. In the second place, his evidence if accepted does not tally with the medical evidence which suggests that the death of the woman was caused not by external beating but by internal injuries. Lastly, this witness is admittedly on bad terms with the father of the accused.
4. The evidence of the other eye-witness who was a servant in the house of the accused but was dismissed the next day, is that on that night the accused and his wife were in the upstairs room. He heard the wife screaming and went upstairs. He saw that the accused was poking her with a stick and that the accused's father was present and was inciting the son to keep on beating her. She fell down and looked unconscious. In the morning she was dead. The father and the son asked this witness to say that she died of hanging. This, of course, is a different story to that told by the first witness. According to P. W. 6 the father and the son were present at the time when the woman was being beaten and until she fell senseless. According to the other witness only the son was there and he was there until she fell down senseless. The only other evidence is that of some witnesses who say that they heard screams at the time of the occurrence and recognized the voice of Probodhbala. One of these witnesses accounts for his presence at that time on the morning by saying that he was coming at that time along the gully past the accused's bari from his field of paddy-seedlings. The other witness who heard screams from the bari accounts for the fact by saying that he lived about a rashi off and that on that night he had not a sound sleep as he had stomach trouble and that he heard the woman crying out, 'Do not beat me any more. I am dying.' He called for the accused's father but got no answer and went away. This witness also admits that he had a suit with the father of the accused which went to the length of this Court. This is all the evidence upon which the conviction of the accused has been based.
5. Now, it appears perfectly clear to us that in view of the highly discrepant stories told by the two alleged eye-witnesses about the occurrence of the improbable nature of their stories and of the fact that neither story tallies with the medical evidence in the case it would be highly unsafe to convict the accused on testimony of this character. There is further consideration that this evidence such as it is was undoubtedly not given before the police and that the doctor who made the post-mortem very rightly reserved his opinion as to the cause of death until he was satisfied that it could not have been due to poison. In our view of the evidence, and of the whole history of the case it is not nearly so improbable that the accused might have been responsible for the death of his wife as it is that the alleged eyewitnesses saw anything whatsoever of what actually happened. In the result, we must reject the reference made by the District Magistrate and we must further set aside the conviction of the accused under Section 323, Penal Code, and direct that he be acquitted. The fine, if paid, will be refunded.
6. I agree.