1. In this case the appellant before us is a woman named Rajeswari Debi. She was put on her trial before the learned Sessions Judge of Burdwan and a jury upon a charge of murder under Section 302 and another separate charge of abetment of murder under Section 302 read with Section 109, I.P.C. The charges were in respect of the death of a woman called Lilabati who was found with her head almost severed from her body on her bed in her own house on the morning of 22nd January 1931. The prosecution case was that Lilabati's husband was away on business and that the accused who lived at a house of her own some 6 or 8 bighas distant was to come in and sleep at night with Lilabati and keep her company. It further appears that Lilabati had a small child of about 15 or 18 months who slept with her. On the morning of 22nd January Lilabati's maidservant of the name of Jhalu Metani (P.W. 6) found that her mistress was lying in bed with her throat cut in the way I have mentioned. She saw the little child come crawling or toddling out covered with blood. Several of the neighbours came before very long; the accused Rajeswari came that very moment and the President of the Union Board wrote a letter which he sent through a chowkidar to the Sub-Inspector at the police station. Neither the Chowkidar nor the letter said anything about a particular person being suspected or having been incriminated as the murderer of the deceased. The Sub-Inspector came that day, the 22nd, and in the evening he held an enquiry. His inquest report included the statement that Lilabati had been alone in her house the previous night, that every one believed that some unknown person had committed the murder and that no one could say anything as to the cause, of this murder. A number of witnesses signed that inquest report after it had been read over and explained.
2. From the following day the 23rd, until about the 25th the Sub-Inspector remained in the village. He examined some witnesses for example, P.W. 2 under Section 161, Criminal P.C., on the 23rd. There was no mention at that time of any confession by the accused. He examined some other witnesses, in particular P. Ws. 4 and 5, but not until 13th February, by which time witnesses were speaking to a confession having been made by the accused on the morning of the 22nd at the time the lady was discovered and in the presence of the neighbours. As a result of the investigation a certain number of circumstances were discovered. Some of these are doubtful; others are reasonably certain. The chief thing was that a large sacrificial knife in the house of the accused was found on the morning of the 23rd. It is said to have been treated with oil but nevertheless there were spots of blood on this which have been found to be human blood. In addition to that there is a witness who says that at about 3 o'clock in the morning of 22nd January he was out getting labourers and while passing Rajeswari's house he heard her saying that she was feeling restless and asking for water. The prosecution story according so their own witnesses is that when the neighbours came on the morning of the) 22nd, and Rajeswari also came, Rajeswari was the person who took down the quilt from the deceased woman; that they asked her to do this, and that she took it down to a certain extent and did not take it down further because she said the injury extended only that far. In view of this fact and in view of the fact that there was a small baby toddling about covered with blood it is not possible to lay any great stress on the circumstance that there were spots of blood on the woman's sari or on her hands. There is something rather in favour of the accused in the circumstances that between the morning of the 22nd and the 23rd, when her sari was seized at her house, she had apparently made some attempt to wash off the patches of blood on her sari and she did not apparently make any serious attempt to delete it altogether. But there has been from the beginning to the end of this case no scrap of evidence as to motive so as to render the action of the accused intelligible on the assumption that she committed this murder. At one time a different theory of the cause of this death was apparently put forward. There was a previous trial and one man was acquitted and this woman was convicted, but she was directed on appeal to be retried.
3. Taking this as a sufficient indication of the character of the case, the accused woman in this appeal makes a number of complaints against the charge of the learned Judge. I think that a large part of the charge, if I may say so, is very well done, but there is one portion of the charge which it seems to me that we cannot possibly support. I have already narrated that in the evening of the 22nd the Sub-Inspector having held his inquest and having seen quite a number of witnesses recorded that nobody whom he had seen could give him any notion as to the cause of the murder and that everybody professed that it was some unknown person. Now the main plank of the prosecution evidence in this trial is that on the morning of that day Rajeswari had uttered various expressions, some of which are entirely ambiguous and not necessarily expression of guilt at all, but that among other things she actually said 'Look at the blood on my hands. I have cut her.' It was therefore very important indeed for the defence to get before the jury the fact that although according to the prosecution this woman had used language of that kind in the morning in the presence of a number of neighbours including some of the persons most interested the Sub-Inspector in the evening was not informed of any such confession, all the people whom he had examined professing to have no knowledge at all as to the person who did the murder and attributing it to some unknown person. Now the defence do not appear to have seen the importance of this as early as they might have done. On 21st May before the Sub-Inspector went into the box this matter was clearly in the mind of the defence and they put in a petition according to which they wanted the learned Judge to give them a copy of this inquest report and wanted that certain witnesses speaking to the confession by the accused on the morning of 22nd January should be cross-examined upon it.
4. The learned Judge following, as he thought, a decision of this Court in the case of Emperor v. Karimuddi Sheikh : AIR1932Cal375 refused to allow that inquest report to be used by the defence to throw doubt upon the evidence of confession given by the prosecution. In my judgment there is no foundation whatsoever for such a ruling and it would be very remarkable indeed if so obvious a test of the evidence of the prosecution witnesses was not to be available to the defence. It is not evident to me that the inquest report comes under Section 161, Criminal P.C., but in any view in this case it did not matter. 'What the Sub-Inspector says is that neither A nor B nor C nor D nor any one of the people whom he examined including those who signed the inquest report had any knowledge as to who committed the murder. Therefore it is not a question of a joint statement as distinct from a separate statement. All these people should have been cross-examined as to how it came about, if what they say is true, that the Sub-Inspector did not hear anything that morning though one of the witnesses was a witness before the Sub-Inspector and signed the inquest report. To take away from the defence the right to make the most of that point before the jury was to reduce this trial almost to a farce. I may say for myself that as a juryman on the basis of this fact alone I have very little doubt indeed that the evidence of confession in this case is entirely false. Now it is not necessary to examine the validity of some of the other criticisms which Mr. Basu has made about the charge of the learned Judge. It seems to me that the fact that this inquest report according to the ruling of the learned Judge himself was not to be considered by the jury by way of casting doubt upon the evidence of confession makes it quite impossible to sustain the verdict given by the jury. The learned Judge says that he has disallowed the defence from using the inquest report in this manner because it is a joint statement. That in my judgment is entirely a fallacious view to take.
5. Now the charge of murder is a very serious charge and even although this woman has been tried twice it is a very serious matter which we have to consider, viz., whether she ought to be tried for a third time. The basic fact in the circumstances of this cases that whereas there was a case of a certain character and a certain degree of strength on the charge of murder she has been acquitted by the jury of that charge and I think very properly acquitted of that charge. At the end of the charge the learned Judge introduced the question of abetment of murder. He says that
the learned Public Prosecutor argues that even if you come to a finding of not guilty as regards the murder, you should still consider whether she is not guilty of abetment, for the evidence of P.W. 4, Gopi Krishna Roy, before the committing Magistrate, was that this woman Rajeswari said at the time of her confession I have opened the lock.
6. He goes on to point out that this witness states that he does not remember if he said so before the committing Magistrate. Then the learned Judge goes on to put a further argument of the Public Prosecutor that if the woman Rajeswari was in the house of Lilabati she must have opened the door no matter who the assailant was and Rajeswari therefore was an abettor. It is a little difficult to see why if the confession that she backed Lilabati is not reliable the remark 'I have opened the lock' should be relied upon to convict her of abetment. At any rate there is no such evidence worthy of consideration in this trial; and as to the suggestion that if the woman was there she must have let the assailant in, I can only say that it does not appear that there is very much in that and that in any event to let the assailant in is not necessarily to let him in with the knowledge that he would murder Lilabati. I regard the charge of abetment in this case as entirely unsupported. I cannot imagine why a separate charge of abatement was ever framed; and what has happened in this case is that the jury have acquitted the woman on the charge of murder but have found her guilty of the charge of abetment of murder. It seems to me quite wrong that this woman should ever be tried on this charge because the prosecution has no saturable case. It is not known to this day what case of abetment could be run against this woman. There are three kinds of abetment according to law. I do not think that blood on the woman's Sari has anything to do with the charge of abetment. The charge of abetment is certainly not a charge on which it is reasonable to have this woman remanded for retrial. As regards the charge of murder she has been acquitted of that charge and in my judgment there is no reliable evidence against her except the fact that a knife hanging in her house was found to be marked with some stains of human blood. I put aside the evidence of confession as almost palpably untrue. The evidence of the man who says that he heard her say something at 3 o'clock in the morning is extremely suspicious to my mind, and even the evidence that this woman was at that night sleeping with Lilabati, if you take it as a whole, is extremely doubtful. I cannot myself think it possible that if this woman is properly tried she would again be convicted of the charge of murder of which the jury in the present case have already acquitted her notwithstanding the summing up which did not allow the jury to take into consideration a point which is a very strong point in favour of the defence. In these circumstances it seems to me that the proper course is to allow the appeal and to direct that the woman Rajeswari Devi be acquitted and released. It is not necessary in the interest of justice or proper that she should be retried.
7. I agree.