1. This is a reference under Section 374, Criminal P.C., for confirmation of the sentence of death passed upon Kumariah Chandra Karmakar and Ramranjan De. There is also an appeal by these two men and by their co-accused, Pashupati Nandi who was sentenced to transportation for life. The appeal and the reference have been heard together. The facts of the case are briefly these : The deceased Dharmadas Chatterjea was a zamindar of the village Gobordhanpur, in the district of Burdwan. On 24th August last, he went to Burdwan on some business and returned to Nigan station by the evening train. He was there met by his servant Madhu Khan with a lantern. Before starting home, he stopped at the shop of Ramgopal Mukerjea for a smoke and drink after which he and his servant proceeded to go across country. In the course of the journey they had to pass along two banks of a tank. Just after the servant had crossed a ditch, the deceased was attacked by certain persons and murdered. The servant was completely terror-struck. He dropped the lantern and ran away until he reached a village known as Soanta. The prosecution case is that the murder was committed by the three appellants and two other men who were not recognized. The appellants all pleaded not guilty and maintained that they had nothing to do with the murder. It is suggested that suspicion fell upon them on account of certain ill-feeling between them and the deceased and it was contended that some evidence had been manufactured in order to implicate them.
2. The case depends on the evidence of the witness Madhu Khan alone. The jury were unanimous in their opinion that this evidence was true and we should be reluctant to differ from such an opinion apart from strong reasons which would induce us to do so. Mr. Mookerjea's argument has naturally been directed to show that the evidence of this man ought not to be accepted. It was first contended that the witness was not there at all. We cannot possibly accept this suggestion apart from the fact that he was seen with the deceased at the station by witnesses who had no reason for giving false evidence. There can be no doubt that it was owing to the information given by him that the corpse was discovered. It is perhaps unfortunate that the defence took this line at all, because one result has been that the witnesses were cross-examined at the trial in order to show that he was not present rather than to show that he had not really recognized the assailants.
3. It is not disputed that the night was a cloudy one. Indeed it was for this reason that the servant was sent to the station with a lantern and it is said that the recognition actually took place because of the light thrown by the lamp. It would be impossible to say that such recognition could not take place. Unfortunately, as I have already noted, the cross-examination was not directed satisfactorily to this aspect of the case at all. But at any rate some facts are quite clear. The witness was himself beaten in an attack from behind; he undoubtedly lost his head and was more anxious to save his own skin than to do anything else. He made no attempt to render any first aid to his master or indeed to discover what had happened to him. At the time he reached the village, it was not known that the unfortunate man was dead. It is therefore very doubtful whether this witness would recognize the assailants. That he did not really do so seems likely from the information which was given out as a result of his examination by certain villagers. There is no doubt at all that the villagers from Soanta have attempted to improve on what actually took place and we cannot rely upon them in any way. A chaukidar was sent from Soanta to give information at the village where the deceased himself resided. The information actually received so far from implicating the appellants did not even refer to the actual attack. It was not even then known that the deceased had actually been assaulted. The only inference we can draw from this is that the witness did not see anything at all and fled for his life as soon as he was beaten.
4. Then again the motive hardly seems adequate to explain this murder. But it is sufficient to show that in the case of-a murder by an unknown person, suspicion would probably fall upon the appellants and this would explain how they were implicated later on mere suspicion. We have read through the evidence more than once and in spite of the unanimous opinion of the jury we consider that it would be most unsafe to convict anybody on the evidence of this witness. We accordingly allow the appeal, set aside the convictions and sentences and direct that the appellants be set at liberty immediately.
5. I agree.