1. In this case the accused Sekendar Ali Shah, has been convicted by the unanimous verdict of the jury under Section 302, Penal Code, of the murder of his wife. The learned Additional Sessions Judge of Bakarganj accepting the verdict has convicted the accused and sentenced him to death, and has submitted the case to this Court for confirmation. There is also an appeal by the accused. The appeal and the reference have been heard together. The story is that on the night of 17/18th March last the deceased woman with two stepdaughters, aged eight and nine years and two other small babies were asleep in the family hut. The girls awoke and saw someone going out of the hut and the mother was found to have had her throat cut. The villagers came to the spot and information was given at the thana on the following morning by the father of the deceased woman. The Assistant Sub-Inspector came on investigation and the accused was arrested on the third day by a dafadar in a grove of trees near a tank some two miles off. His story is that he was in the house of his Talai on the night of the occurrence and knew nothing about it, and that he was returning on hearing of his wife's death when he was arrested. Some blood was found on his lungi at the time of his arrest.
2. The two daughters were first examined under Section 164, Criminal P. C, by a Magistrate on 24th March and then again in the committing Court on 30th April, and finally in the present trial. The girl, Ayesha Khatun, the elder, in her story in the trial Court stated that her father was in the hut, but sleeping in a separate bed from the deceased woman, Asia Khatun, and that she saw somebody going out of the hut, but could not recognize him, In her statement before the committing Magistrate she gave a rather similar version, but stated that her father made them sleep with him instead of with her step-mother as was usual. She also there made a statement that her father had kicked his wife on Sunday at noon because she had grumbled that he was not properly working. In her statement under Section 164, Criminal P.C., she had said that she woke up on hearing a noise and cried out saying that her father was being carried away and her father ran away. She also stated that during daytime her father wanted to drive her mother out and that he was sitting with a dao and sota saying that people would come to beat him. The other girl Mamuda Khatun, aged eight years, in the trial Court said that she did cot know where her father was sleeping as be came back from the hat after they had retired for the night and that she had not seen him after he left for the hat; but she did say that she slept in the same bed where her father generally sleeps. She said that she saw a man getting out of the bera, but that she did not see who it was.
3. Before the committing Magistrate this girl had said that she and her sister had slept with her father as he asked them. But she said that they usually slept with their mother. She also stated that her father said that some people might come and kill him as he had enemies and so he asked them to sleep with him. She also told the story about her father having kicked her mother about a quarrel. In her statement under 13. 164, Criminal P. C, she first said that she had seen her father kill her mother and go away by cutting the bera and then qualified this by saying that she did not see the actual killing, but awoke on hearing a noise, and saw her father going out and her mother lying dead. She said that she was sleeping with her father at his request. It will be seen that the story of the elder girl remains much the same throughout, though there is some deterioration regarding the evidence as proved against her father. The story of the younger girl in the trial Court is very much weaker than her other stories and she does not even state that her father was in the hut on the night of the occurrence, whereas under Section 164 she explicitly made a statement that her father had killed her mother.
4. Now, the statements under Section 164 were put in at the instance of the Public Prosecutor after objection by the defence pleader and it is noted in the order sheet that they were put in under S.157, Evidence Act, that is to say, to corroborate the girl. So far as Ayesha Khatum is concerned, the statement under Section 164 definitely contradicts her later evidence as regards the quarrel, though as regards the actual occurrence there is, as has been stated, no serious difference. But in the case of the other girl it can by no stretch be said that this statement under Section 164 corroborates her statement in Court. In fact it clearly contradicts it, and the prosecution could only have put this in with the permission of the Court in order to impeach the credit of their own witness under Section 165, Sub-section (3), Evidence Act. It was clearly the duty of the learned Judge, which he failed to perform, to point out that this statement was itself not evidence at all against the accused and its only purpose could have been to negative the evidence of the girl as given in Court. From the charge it is clear that the statement was treated as though it were substantive evidence against the accused.
5. Similarly, there is some evidence on the subject of some matches being found by the wall of the hut to which the learned Judge appears to have attached some importance. Neither of the girls, either in the committing Court or in the trial Court, stated anything in regard to the matches and therefore the evidence that they had made any statement about them to other witnesses at the time was not admissible except possibly for the purpose of contradicting their present story. It will thus be seen that substantially the evidence against the father is the statements in the two Courts of the girl Ayesha that her father was in the hut at the time and of the other girl in the committing Court that her father was there and that they awoke seeing somebody going out of the hut. Together with this there is the fact that he was not found for the rest of the night and the following two days and was eventually arrested with blood on his lungi, by a dafadar. This evidence is certainly consistent with the view that he was responsible for the murder though, if he committed it, there is no evidence of any motive for his so doing.
6. There is some evidence that the woman was not of good character though how far that evidence is reliable is doubtful. However, if the husband, though in the hut, either awoke finding his wife being murdered or came on her with another man, we cannot speculate as to what would be his conduct in the circumstances. But we can say that the evidence given does not appear to be entirely inconsistent with some such reasonable possibility. On that view the accused was not called on to substantiate any defence because it amounts to this that the prosecution case is itself not strong enough to establish his guilt. We think that the charge of the learned Judge to the jury is open to serious criticism in that it almost assumes that the prosecution case is proved and throws the onus on the accused to establish his innocence and further when the learned Judge repeats as he does more than once that the jury must have reasons for their doubts before they can consider that they have a reasonable doubt, we think in the circumstances of this case that the charge was open to serious objection. In our opinion, it would not be safe on the evidence as given in the case to convict the accused on the charge of murder and, in that view, the reference cannot be accepted. We therefore set aside the conviction and sentence and direct that the accused be set at liberty forthwith. The reference and the appeal are disposed of in these terms.
7. I agree.