1. I regret I am unable to agree with my learned brother in the grounds which he has given for ordering a retrial. It is not a case which rests entirely on circumstantial evidence. There is the confessional statement of the accused. There is also some evidence that the deceased told some witnesses that he felt a sensation similar to the after-effect of poisoning after he had taken his meal given by the accused.
2. As to the question whether calomel might have been administered, it is only a suggestion and the Court is not justified in asking the jury to act upon suggestion only of the existence of a fact without any evidence whatsoever. The local doctor denies that he administered calomel. There is no suggestion that anybody else did it. It is not the duty of the Judge, it seems to me, to place before the jury theories of facts which are not supported by any evidence. It is not proved that there was any one in the house besides these three persons, the accused, the deceased and the mother of the deceased or that anyone had any access to the house on that evening. The learned Judge's charge seems to me to be extremely fair and he has stretched a point or two in favour of the accused. But I agree with the order of my learned brother which he has passed for a retrial, because it appears to me that on one point the learned Judge has been rather assertive in his opinion. There were two questions which were necessary to be placed before the jury and one was whether the death was due to poisoning. On this point the learned Judge has in some places assumed the death of the deceased to be due to mercurial poisoning. That point with all the evidence bearing upon it should have been left to the jury. It is hoped that the evidence of Col. Thakur might be available when the case is again taken up for retrial, and this is another inducement for us to agree to a retrial.
3. The conviction and sentence will be set aside, but the accused will remain in custody, pending further orders of the Sessions Judge.
4. In my opinion, there ought to be a retrial in this case, and that being so, I do not propose to discuss the evidence at any great length.
5. The conviction is based partly on a confession and partly on circumstantial evidence.
6. As regards the confession, the learned Additional Sessions Judge has very properly pointed out to the jury that it is really of an exculpatory character, and he has further made it clear that, in his opinion, very little reliance should be placed thereon.
7. As regards the circumstantial evidence, the circumstances which the prosecution has tried to establish, and from which an inference of guilt has been sought to be drawn, are as follows : (i) Accused Jahura Bibi was a girl of bad character and had several lovers. She had consistently refused to go and live with her husband Azahar, but had been compelled to do so about a fortnight before the occurrence : she was anxious to get rid of her husband and attempts had been made to get him to divorce her, but he had refused to do so : (ii) Azahar was taken violently ill shortly after his evening meal, which had been cooked and served by his wife Jahura, and he died following morning; (iii) The medical evidence is to the effect that death was probably due to an irritant poison, and; (iv) The Chemical Examiner's report shows that mercury was found in the viscera of the deceased.
8. The learned Additional Sessions Judge appears to have placed the evidence on the first two points before the jury with great care and with conspicuous fairness, hub the manner in which the medical evidence and the report of the Chemical Examiner have been dealt with is not altogether satisfactory. The special attention of the jury ought, in my opinion, to have been drawn to the fact that the only evidence regarding the symptoms shown by the deceased was that of ignorant people deposing long after the event, and of somewhat inexperienced and not very highly qualified local doctor, who only saw Azahar 'for a few minutes before his death, when he was already unconscious and in a moribund condition. As regards the post-mortem report drawn up by Col. Thakur, the learned Additional Sessions Judge ought, in the first instance, to have considered and decided whether Col. Thakur's written opinion to the effect that death was probably due to an irritant poison, was at all admissible in evidence, and having rightly or wrongly admitted this opinion in evidence, he ought to have explained to the jury that all that Col Thakur had before him when he held the post-mortem examination, was a police report to the effect that it was a case of suspected poisoning. He had no knowledge of the symptoms shown by the deceased, and there is nothing to show that his attention was in any way directed to the possibility of death having been due to cholera. If it had been possible to examine him as a witness in this case he would doubtless have been asked to give his opinion as to whether the state of the intestines, taken together with the description of the symptoms given by the local witnesses, was or was not consistent with the defence theory that death was due to cholera, together with a possible overdose of calomel. His attention would also doubtless have been drawn to the Chemical Examiner's report, and he would have been asked to give his opinion as to whether death might or might not have been due to mercurial poisoning. In these circumstances the jury ought, in my opinion, to have been warned against placing much reliance on the brief written opinion as to the probable cause of death recorded by Colonel Thakur, in view of the fact that the grounds thereof had not been stated and that it had not been tested by cross-examination. The jury ought also, in my opinion, to have been warned against attaching too much weight to the evidence of the Assistant Surgeon Dr. K. B. Sinha who, on a mere perusal of the post-mortem report, has confirmed the opinion recorded by Colonel Thakur.
9. As regards the Chemical Examiner's report, it ought, I think, to have been pointed out to the jury that this is just as consistent with the defence theory that Azahar died of cholera after having been given a dose of calomel, as with the prosecution theory that Azahar died of mercurial poisoning, calomel being a compound of mercury : vide the article on Mercurial Poisoning at pp. 437-455 of Taylor's Medical Jurisprudence, 8th Edn., Vol. 2. Their attention ought also to have been drawn to the evidence of some of the local witnesses to the effect that there had been cases of cholera in the village of the deceased both before and after the occurrence, and to the evidence of Dr. Sinha regarding calomel being sometimes administered as a medicine in cholera cases. A somewhat remarkable feature of the case is that no attempt appears to have been made to ascertain where the poison, if indeed it was a case of poisoning, was obtained from, and there is nothing to show that corrosive sublimate or any other compound of mercury is at all known, or at all readily obtainable, in the somewhat remote locality in which the occurrence took place. This too is, in my opinion, a matter to which the attention of the jury ought to have been specially drawn.
10. In the course of his charge to the jury, the learned Additional Sessions Judge has expressed himself as follows:
So taking into consideration the report of the Chemical Examiner, I think you can hold that Azahar Ali died of mercurial poisoning,
and later on:
In my opinion, having regard to the medical evidence, and the report of the Chemical Examiner, you could have had no doubt that the death of Azahar Ali was due to poisoning.
11. Having regard to the infirmities of the medical evidence, as indicated above, I do not think the learned Additional Sessions Judge was justified in expressing his opinion regarding the cause of death in such an emphatic manner, and it may well be that the jury allowed themselves to be unduly influenced by the Judge's opinion on the point in question.
12. The most serious defect in the charge to the jury is, however in my opinion, the omission on the part of the Judge to explain the main principles to be followed in criminal cases based on circumstantial evidence. As I understood them, these principles are as follows:
(i) The circumstances from which an inference, adverse to the accused is sought to be drawn, must be proved beyond all reasonable doubt and must be clearly connected with the fact sought to be inferred therefrom; and (ii), in order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
13. These and other connected principles to be observed in such cases have been clearly stated and fully explained in Will's Circumstantial Evidence, Ch. 6, and have been referred to as being fundamental and of universal application by a Full Bench of this Court in Huriee Mull v. Imam Ali Sircar  8 C.W.N. 278. In the present case all that the learned Additional Sessions Judge did was to point out to the jury that there was no direct evidence and to give them the usual directions regarding presumption of innocence, burden of proof required in criminal cases, and benefit of doubt.
14. In my opinion, that was not enough : it is always difficult, especially for laymen, to decide at what point suspicion merges into certainty, that is to say, certainty of the kind on which a conviction can properly be based, and in the absence of any clear directions as to the principles to be followed, the jury are very liable, in cases based on circumstantial evidence, to return a verdict of 'guilty' on mere suspicion. When moreover the principles referred to above are sought to be applied, it is always found to be necessary to examine the surrounding circumstances with minute care, in order to ascertain whether there may not be some reasonable explanation of the incriminating circumstances, other than that of the guilt of the accused, and in the present case it seems to me that the jury ought to have been asked to consider whether, even if it be regarded as proved that Azahar's death was due to poison administered to him with his evening meal, and that his evening meal had been cooked by and served by Jahura--Jahura may not have known that the food had been poisoned. It is true that, if the evidence is to be believed, the only inmates of Azahar's house were Azahar, Azahar's mother, and Jahura, but the attention of the jury ought in my opinion to have been drawn to the fact that the cookshed was a separate building, easily accessible to other inmates of the bari (viz., Jahura's mother and sisters, and one Jaherjan and her husband Ajed Ali), and properly also to outsiders. Another point in this connexion to which the attention of the jury ought to have been drawn, is that, according to Azahar's mother, Jahura used always to go back to her mother's house for the night after doing the cooking, and that she did also on the evening in question.
15. In my opinion the omission to draw the attention of the jury to the various points referred to above, and in particular, the failure to explain the principles to be followed in dealing with circumstantial evidence, amount to misdirection, and such misdirection has in fact, occasioned a failure of justice, in the sense that the jury were not in a position properly to appreciate the evidence, and to base a correct decision thereon.
16. In these circumstances the conviction and sentence ought to be set aside, and the case sent back for re-trial.