1. Five accused persons were put on their trial before the Sessions Judge of Noakhali and a special Jury. They were all charged with conspiracy to murder Bipin Behari Shaba; one of the accused, Biseswar Rej, alias Biseswar Raj, was charged with having actually committed the murder; two of them, Jatindra Mohon Das and Satish Chandra Shaha, were charged with having been present abetting the murder, and Jotindra Mohon Das was further charged with having abducted Bipin Behari Saha in order that he might be murderer, the remaining two, Kshetra Mohon Saha and Maharani, were charged with abetment of the murder. Alter a trial held for 28 days the Jury returned a unanimous verdict stating that the case against the first four accused was doubtful and they gave them the benefit of the doubt, and that Maharani was not guilty. The Sessions Judge agreed with the verdict as to Maharani and acquitted her. In respect of the others he disagreed with the verdict and held it to be perverse and thought it necessary for the ends of justice to refer the case to this Court under the provisions of Section 307, Criminal Procedure Code. In his opinion these four accused are guilty of the offences mentioned in the charges laid against them.
2. The case against the accused rested mainly on the evidence of an approver, Bidhu Bhusan Saha, (P.W. No. 1), and retracted confessions of the accused. Before considering the strength of the case so made out, it will be convenient to state certain facts which are either undisputed or which have, in our opinion, been proved beyond reasonable doubt.
3. Bashpara is a village in the jurisdiction of the Chhagalmaya Police Station and the Feni Sub-Division of the Noakhali District. It is 1-3 miles from Chhagalmaya and nine miles from Feni. In this village a rich Shaha family, of which the principal member is Babu Amar Krisha Chouduri, owns a large pucca house. Babu A.K. Choliduri, who is called by the witnesses Amar Babu, lived sometimes in Chittagong and sometimes at Bashpara. The accused Maharani was a servant of Amar Babu and came from Chittagong to Bashpara at the time of the Durga Puja of 1920. The accused Kshetra Mohon Saha is the brother-in-law of Lai Mohon Babu, who is brother of Amar Babu. The accused Satish Chandra Saha is a nephew of Amar Babu, Jotindra Mohon Das is the son of Ambika who had long worked for the family as a mason and was maintained by Amar Babu and his co-sharers. The accused, Biseswar De, was brought by Ambika a few months before the occurrence to work as a mason. Bidhu Bhusan Saha, the approver, is the brother of the widow of a cousin of Amar Babu. The accused Kshetra had a tailor's shop in one of the rooms of the Shaha's house. The accused Satish and Jatindra and the approver Bidhu were students at the Chhagalmaya School. The ages of the accused are, as recorded by the Sessions Judge, Biseswar 22, Jotindra 18, Kshetra 20, Satish 16 and Maharani 19, Bidhu's age is about 16 years.
4. Bipin Behari Satin, whom the accused are charged with having murdered, was aged about 21 years. He was a nephew of Amar Babu and came from Amar Babu's house in Chittagong to Bashpara on the 10th March last. On the night of Sunday, 12th March, Jotindra, Bipin, Bidhu and Kshetra Were seen playing cards at about 9 or 9-30 P.M. The following morning the corpse of Bipin was found lying on the masonry platform of a tank about 300 feet distant from the place where he and the others had been seen playing cards. The right hand was amputated and there was a wound on the throat cutting the wind pipe, gullet and corotid arteries. There were also cuts on the left and right ears. From the quantity or blood on the pavement and. the marks of spurting of blood there can be no doubt that Bipin was killed near the place where his corpse was found. Information of the finding of the corpse was given to Sub-Inspector Promatha Nath Mukerjee at the Chhagalinay'a Police Station at 9 A.M. and he came to the place and recorded a First Information there at 9 A.M. on the 13th March. The enquiry into the case was commenced by Ibis Sub-Inspector. The Sub-Divisional Officer went to the place of occurrence accompanied by the Feni Inspector of Police, Ananda Charan Bhandopadrrya, on the afternoon of the 13th. The Inspector personally took charge of the investigation on the 17th March. The Deputy Superintendent arrived at the place on the 16th March and supervised the investigation. Kshetra, Jotindra and Hidhu said that Bipin had played cards until about 10 or 10-30 P.M. and had left them saying he would sleep at his father's house and go to Feni the next morning to get his cycle repaired. An examination of Bipin's father's house showed that Bipin could not have slept there at any time during' his visit to Bashpara. On the 20th March Amar Balm's house was searched. In the room occupied by Maharani was found a blood-stained quilt. Maharani was arrested at 8 or 9 o'clock that morning. In. consequence of statements made by her, jotindra, Kshetra, Satish and Bidhu were arrested at 8 or 9 o'clock that night. The following day Biseswar was arrested at 1.30 P.M. On the 22nd these six accused persons-were sent to the Sub-Divisional Officer at Feni to have their confessions recorded. They were produced before him at 12-20 P.M. and, on hearing that they had just arrived and had not had their meal, he told the Court Sub-Inspector to feed them and give them a rest in the Court lock-up and to produce them before him at 3 P.M. They all made confessions that after-noon and were remanded to custody. For some reason that has not been disclosed, Jotindra was sent to the Noakhali Jail on the 26th March while there he admitted to the Officiating Civil Surgeon who was in charge of the Jail that he was present at the murder and held down the feet of the man whom the Raj Mistri gave the finishing stroke. On the 2nd of May the hearing before the Sub-Divisional Officer of Feni as Committing Magistrate commenced. After the case had been opened by the Government Pleader, the confessions made by them on the 22nd March were read to each of the accused and each of them said: 'Imade this confession. It is true. I have nothing more to say.' Bidhu was then tendered a pardon, and examined as a prosecution witness. At the close of the day's proceeding Jotindra, Satish and Kshetra retracted their confession.' Witnesses were examined daily till the 6th, May, on which date the accused were again examined. Jotindra, Satish and Kshetra denied having committed any offence and' said their confessions were false and made under threats and inducements. Biseswar De said; 'I committed the offence. I have nothing more to say here.' Maharani only said, 'I am guilty.' The following day at the commencement of the sitting of the Court, Maharani said that the previous day through mistake she stated that she was guilty although she was not guilty. The trial in the Sessions Court commenced on the 6th June and when the charges were read all five accused pleaded not guilty. Bidhu, the approver, was examined as Section prosecution witness on the 6th and 7th June. The Court did not sit on the 8th and 9th. On the 10th June he resiled and said that all he had previously said was false. When examined by the Sessions Judge at the conclusion of the trial all the male accused made statements accusing the Police of ill-treatment and alleging that they were tutored to make their confessions. Maharani made a statement denying the truth of certain evidence implicating her to which her attention was drawn by the Judge, but she was not asked and said nothing about her own previous admission. The story told by the accused in their confessions and by the approver before he resiled is to the following effect. Maharani was a woman of loose character. Satish and Bidhu used to sleep in the verandah of the. room where Maharani lived and carried on an intrigue with her. Jotindra became enamoured of her and threatened Satish and Bidhu with disclosure to the Babus and got them to agree to call Maharani mother and to go and sleep elsewhere. Kshetra had also been misbehaving with Maharani at the same time as Satish and Bidhu, but Kshetra and Jotindra were fast friends and continued visiting the woman together. When the deceased Bipin came he visited Maharani on the Thursday and Friday nights. According to Jotindra it was Kshetra and, according to Kshetra, it was Jotindra who suggested that Bipin should be killed in order to prevent him taking the woman back to Chittagong and informing Amar Babu. Biseswar was promised Rs. 500 if he would commit the murder. Satish and Bidhu were persuaded to join the conspiracy for fear of their misconduct being revealed. On the Saturday night Kshetra, Jotindra and Bidhu got Bipin to play cards with them after supper. They stopped playing about midnight and then Jotindra took Bipin to the platform of the tank where the murder was committed. Bidhu went and woke up Satish. A kharga (sacrificial knife) had been placed in readiness under Satish's bed. Bidhu and Satish went with the kharga--there are discrepancies as to which of the two carried it--and called Biseswar. Biseswar did not get up and they started back. They met Kshetra and told him they could not wake up Biseswar and then Kshetra went and woke Biseswar by poking him with a bamboo. The kharga was given to Biseswar and Kshetra went off to bed. Bidhu, Satish and Biseswar then went to the place where Joindra and Bipin were sitting talking. Biseswar came behind Bipin and struck him on the neck. Bipin lell down and began to groan. (Biseswar struck hi, again and Jotindra held Bipin's leg while he was writhing in agony and dragged the dead body to the water where it was found the next morning. According to Jotindra and Maharani, Kshetra and Jotindra took a blood-stained built to show hex that her lover had been murdered but Kshetra denies that he came out of his house again that night.
5. The principles which should govern a Court in considering the evidential value of retracted confessions have frequently been considered by the High Courts in India. It cannot be laid down as an absolute rule of law that a confession made and subsequently retracted by a prisoner cannot be accepted as evidence of his guilt without independent corroborative evidence. The weight to be given to such a confession must depend on the circumstances under which the confession was originally given and the circumstances under which it was retracted, including the reason given by the prisoner for its retraction. It is unsafe for a Court to rely on and act on a confession which has been retracted unless, after a consideration of the whole of the evidence in the case, the Court is in a position to come to the unhesitating conclusion that the confession is true, that is to say, usually, unless the confession is corroborated by credible and pendent evidence. A retracted confession should carry practically no weight as against a person other than its maker.
6. On a consideration of the circumstances under which these confessions were made and retracted, it is clear that the confessions made by the approver and the three accused, other than Biseswar, were made in the belief that they would be tendered a pardon and made King's Evidence. Apart from other reasons, this view is strongly supported by their behaviour on the 2nd May. Though these accused had adhered to their confessions in the morning, at the end of the day when they realised that Bidhu alone had been selected as an approver, they retracted, then alleging they had been made under threats and inducements. We do not believe the statements made by the accused at the trial as to positive ill-treatment by the Police. Nor do we believe that the whole story was a concoctiim by the Police. We think the learned Sessions Judge was misled by the falsity of a great part of the case for the defence set up before him. If the defence at the trial had been conducted with the same ability and moderation as it was before us, we doubt if is would have thought it necessary to make this reference. That Maliarani was threat tied when the blood stained cloth was found in her room is not unlikely and the facts deposed to by witnesses who seem the more credible since they, speak with moderation. The denial of this fact, by the Police witnesses who were present renders their conduct open to suspicion. What we believe to have happened was, that after Maharani's arrest Jotindra, Kshetra, Bidhu and and were arrested on suspicion because she stated they were her lovers and because three of them were the last people with whom Bipin was seen alive. These accused were then closely questioned by the Police and threatened and canceled into making various statements. A statement made by one accused would be made the basis of further questioning of another and each would be told that when so much had been discovered his only hope of safety lay in making a confession. Out of the facts ascertained and such admissions as were made, a theory of the crime would be constructed and this would be put to the accused individually. Once they had been convinced that their best hope of safety lay in becoming King's Evidence they would be only too willing to adopt the suggestion made to them. There is no direct evidence that this was what happened in the present case, but from the circumstances under which these confessions were made and retracted and from the nature of the confessions themselves we have no doubt that they were obtained in some such manner under threats and. inducements which render them inadmissible under Section 24 of the Indian Evidence Act. Apart from these confessions, there is no evidence to support a conviction of any of these three accused. The evidence of Hi dim is absolutely worthless, not only on account of his denial of its truth but, apart from, that, the story told by him is highly improbable and there are discrepancies on important points between the evidence given by him before the Committing Magistrate and that given at the trial. The most incriminating evidence is that relating to the card-patty on the night of occurrence. But it is not shown that the account given the next morning by the accused a to the termination of the party is false. The learned Sessions Judge appears to have overlooked the possibility that Bipin may have, given his companions a false reason for his departure. Though it is clear that Bipin did not go to his father's house that night, this does not prove that Jotindra and he oilier, accused were not telling the truth when they said Bipin had made this statement. Other facts, like the swooning of Jotin on arrest, are equally consistent with the guilt and innocence of the accused. Jotin's confession to the Civil Surgeon at Noakhali is of no more value than his first confession to the Magistrate. He may well have thought that repeating his confession would strengthen his chance of being made an approver.
7. When the confession and evidence of the approver are rejected the circumstantial evidence is insufficient to do more than raise some suspicion against these accused and this suspicion is increased by the falsity of their statements at different times. But we agree with the Jury that they cannot be convicted on any of the charges framed against them.
8. The case of Biseswar remains to be considered. He did not, as did the other three accused, retract his confession on the 2nd of May after Bidhu examination, but adhered to it even on the 6th May. It may be that being, unlike the others, uneducated he had still hopes of a pardon. There is no reason to think that he was treated differently from the others during the Police investigation and this renders it difficult to act on his confession now that it has been retracted. However that may be, we are not in a position to come to the unhesitating conclusion that this confession is true. The whole story, of the, murder is improbable. We are unable to believe that these young men would conspire, in the Way alleged to deliberately murder Binin because he was carrying on an intrigue with a woman of Maharani's character. Nor can we believe that a mere promise of Rs. 500 from a man in Jotindra's position would be a sufficient inducement for the commission of a murder. We also cannot overlook the possibility that Biseswai may have been induced to make himself a scape-goat Further, we find absolutely no corroboration of his retracted confession. The retracted confession of his co-accused would, be of no evidential value against him even, if we had not rejected them as against the makers and Bidhu's evidence, as, already stated, is worthless. The learned Sessions Judge has stated in his letter of reference that a footprint found close to pool of blood was according to the foot print expert, the footprint of the accused Biseswar. But we can find no such statement in the evidence given by the foot-print expert, inspector Atlanta Kumar Chakraverty (P.W. No. 20). He has stated in detail the points of similarity and dissimilarity between the impression that was taken of Biseswar's foot-print and the foot-print found at the scene or the murder. But he has not stated that the points of similarity preponderate over those of dissimilarity nor has he expressed his opinion as an expert that the two foot-prints are of one and the same person. We are told by the learned Counsel for the Crown that he did give evidence to this effect before the Committing Magistrate. But this deposition was not put in evidence at the Sessions trial and cannot be considered by us. In the case of Biseswar we, therefore, hold there are no materials on the record to justify our setting aside the unanimous verdict of the Jury.
9. We accordingly acquit the accused on all the charges framed against them and direct that they be released.