1. The appellants were charged with two others of murder. They were tried by the Additional Sessions Judge at Mymensingh and a jury. By a majority of six to three the jury-returned a verdict of guilty against the appellants and of not guilty against the two other accused. The learned Judge charged the jury in such a way as makes it obvious that his own inclination was in favour of the present appellants. Nevertheless he said in his order that though he would have preferred a verdict of not guilty against all the accused he did not think it proper to disagree-wholly from them and refer the case to the High Court. He went on to say that the learned Public Prosecutor said that as there was some provocation the lesser sentence of transportation might be imposed, though the provocation was, not sufficient to bring the case under Section 304, I. P.C., and this suggestion the learned Judge adopted. I may say at the outset that I can find no evidence whatever of any provocation sufficient to come within the legal meaning of provocation. It is doubtful therefore whether the learned Judge was justified upon facts, assuming that he accepted the verdict of the jury, in reducing the sentence to one of transportation. If he had sentenced these two appellants to death the sentence would have come before the High Court, which could have inquired into the facts.
2. As has been pointed out in cases formerly dealt with in this Court, under the provisions of the Code the prisoner sometimes is in a worse position when sentenced to transportation for life than if be had been sentenced to death. The case for the prosecution is so bare in its facts as to lead at once to some suspicion of its truth. The deceased Abbas Haji was returning home from an adjoining Hat just before sunset. He was accompanied by his son Abdul Haye, (a boy of about 11), his brother Wahed Ali and two other persons Abdul and Aha-dulla. They were not walking together because the path was upon an ail which only allowed room for one person to pass at a time. But the other three were close behind Abbas Haji. His son was throe to four cubits behind, Wahed Ali was about ten cubits behind and Ahadulla was 30 to 40 cubits behind. The sun had not reached the horizon and it was light, and at this moment, when Abbas Haji had reached a place where the path is crossed by another path, Sali Sheikh stepped out from a jute field and without any preliminary either of word or otherwise, plunged a spear into the abdomen of Abbas Haji. Then he tried to pull the spear out again, but failed to do so. Then he turned round and said to Aga Sheikh ' What you are doing ?' moaning Why don't you come and help?' and Aga Sheikh then came up and dealt a heavy blow on Abbas Haji's head with a lathi. Then the two other accused appeared in the jute field with lathis and stood there for a time but did nothing. Then the story goes that Abbas's son and relatives approached and the four accused ran away. While these things were going on, which must have taken one or two minutes at least, no word was spoken except the remark made by Sali to Aga Sheikh. Nobody attempted to do anything to protect Abbas or to ward off the blows or to secure any one of the four accused or to make any attempt to secure their arrest. This having happened, Abbas was taken along a little way to the bank of a tank whore he sat down, and a hue and cry having been raised a number of persons came up.
3. Although these cross-roads were only paths the evidence shows that they were frequently used and that persons coming back from the Hat used them and there were dwellings quite close to the tank. There were several huts a little further away from which some of the neighbours came. From this moment before sunset up till midnight, it is alleged that Abbas sat upon the side of the tank, while a considerable number of people came up and talked to him and he described the attack and named the four accused as the ones who had attacked him. Further he sent his son for pen and paper and got one of the neighbours named Arfan to write down his dying declaration. Also a student was sent for who performed the religious ceremony of Towba before Abbas died. Wahed Ali waited until he died, then he went to the Thana and gave the first information report. He had been with the deceased the whole time from when he was attacked until his death and so he ought to have known the facts better than anybody else. His statement was generally as I have already related. But he said in it that Abbas mentioned the names of the accused with great difficulty, and. died a little after this.
4. Now the statement made by the deceased about the names of those who. had attacked him was made immediately after the occurrence. It is clear therefore that the first information report is. wholly inconsistent with the evidence that ho lived on until midnight when he died. The defence was that these accused had nothing whatever to do with the murder and had been implicated on suspicion; that Abbas Haji had been struck after dusk and neither he nor his relatives had been able to identify his. assailants; that he had suspected the accused because their houses where they lived together, were close to the scene of the attack; secondly, because there had been some altercation between them and the deceased because they had been carrying on a Ghattu or singing, party, and the deceased had more than once objected, and had even gone so far as to threaten them with prosecution under Section 110, Criminal P.C., unless they desisted. Also there had been some unpleasantness over a girl who was to have been married to Sali but unfortunately married a nephew of Abbas Haji. These facts present a number of aspects which, if not improbable, at any rate, sound somewhat out of the ordinary.. The prosecution were in agreement with the defence in that they admitted the unpleasantness which had arisen between Abbas and the accused, and Abbas himself advanced these matters as the motive for the attack upon him. It is of course unnecessary for the Crown to prove motive, but the motive suggested in this case seems to be very slight.
5. It is hardly probable that the trouble about the Ghattu party, which took place over a month before, would have led the accused to attack Abbas in the manner described. It seems unlikely that if Sali and his companions were incensed, as is suggested, they would have been unable to find an opportunity of attacking Abbas until more than a month had elapsed. Then it seems curious that they should have chosen a hat day for this crime when they must have known that a number of people would be coming back at this time of the day, and along this path. They chose the busiest place where four of these paths met, and what is more extraordinary, it is suggested, that they deliberately committed this crime in daylight, in the presence of the man's son, brother and two other persons, and at a moment when two at least of them were close to the deceased.
6. According to the prosecution they had no disguise nor had they their faces covered. Nothing was said, except the remark of Sali to which I have referred. All the four accused were thoroughly well known to Abbas and his relatives. They had known the accused well from when they were children. Further there was not the slightest chance, if the evidence of the prosecution is to be believed, of the accused escaping from an accusation of this crime of murder. Again there is something about the evidence given by the rest of the witnesses which does not seem to ring true. According to the first information report this man died immediately after mentioning the names of the accused, and the evidence is that he did this to his son and brother directly they came up. A number of witnesses were called to depose about coming up and talking to Abbas as he sat by the side of the tank when be told them the names of the accused and what had happened to him, and that this conversation between them lasted off and on till midnight. The fact that he was able to talk to so many people seems inconsistent with the remark in the first information report that he gave the names of the accused with great difficulty. Each of these witnesses was called obviously to support the story that Abbas had made a dying declaration, and that it had been written down by Arfan. It was realized evidently that this was an important piece of evidence and the more witnesses there were to it the better, yet strange to say, there is no mention of it in the first information report. Wahed Ali stated that he waited until Abbas died, when he went to the thana. He arrived at the thana between 1-30 and 2 a. m. in the night. A chaukidar was sent for and according to him Abbas was alive when he arrived at the spot, and Wahed Ali was not there as he had already gone to the thana to give the first information report. It is probable that the chaukidar was not telling the truth. But it indicates a desire on the part of all the witnesses for the prosecution to prolong the life of Abbas, so as to fit in with the story of the dying declaration, and with the story that Abbas was not only able to recognize but to state the names of his assailants.
7. It is clear from these facts that the first thing, all important to be decided was the time of the attack. If the truth be that the attack was made after dusk it would account for the suggestion made by the defence that these men had been wrongly accused. It is quite possible that Abbas, being unable to identify his assailants, honestly formed the opinion that he had been attacked by these four persons, with whom recently he had had trouble, and it would not be surprising if he jumped to that conclusion, and named them to his relatives and to the neighbours who gathered round. If the attack took place after dark, it would account for and explain the improbabilities to which I have referred. All of them disappear, if it be the fact, that the attack took place after dart. Further it would explain the extraordinary attitude of his relatives and friends. If they were not able to identify the assailants, and if Abbas died very soon afterwards, it would explain why no attempt was made to arrest these men. No accusation was made until midnight; no one sent for a doctor or sent anybody to give medical assistance to Abbas, and the neighbours behaved in the most callous manner, coming up, looking at him lying dying upon the bank of this tank, and then going away again and making no further inquiries whether he lived or died. Their behaviour sounds extraordinary, but if the man were already dead it would explain their attitude completely, and if every body was undecided about who were the assailants, it would explain the delay in making any attempt either to accuse them or to arrest them.
8. The learned Judge, as I have already said, clearly formed an opinion in favour of the appellants, and he charged the;jury in a way which was distinctly favourable to them. It is difficult to criticize the charge, although personally, if I had felt as strongly as the learned Judge did, I should have told the jury what my opinion was. On a charge of murder, if the Judge with all his advantages, forms a definite and strong opinion that the evidence is not sufficient for a conviction, it is dangerous to leave [the matter to the jury without a strong indication of the Judge's own opinion, so long as he makes it clear that in spite of that opinion they can, if they choose, disregard it and bring in a verdict of guilty. One of the unfortunate facts connected with this trial is, that out of a crowd of witnesses, nearly all of them were in some way related to the dead man, either, by blood or by marriage or because they stood in the position of debtors to his relations.
9. It appears that there were persons who could have deposed, who were quite independent and against whom no such criticizm could be made. Those people were not called. It may be that they were unable to give any useful evidence, but this can hardly have been the case because they were persons who listened to what Abbas said. Further there were people living close to the tank. There is evidence that a cripple was living in a hut there, with several women, and that he came towards the place of occurrence just about the time of the attack but went back again. It may be that he and these women could 'not have given any useful evidence, but it is unlikely, because, as the learned Judge has pointed out to the jury, at least they could have given evidence on the question of time which was all important. Most certainly they could have said whether this attack took place before or after dusk. They were not called, and the learned Judge referred to this matter in charging the jury, and said that none of these independent persons had been cited or examined by the prosecution:
You are to give your due consideration to the absence of such witnesses,
and then again,
this point has been impressed upon you by the learned advocate for the defence and this point is worth serious consideration.
10. Such a direction obviously was insufficient. We cannot presume that the jury knew what they were entitled to do in the absence of such witnesses. The Judge ought to have told them clearly, that if they thought there was evidence to show that those witnesses might have given relevant evidence, then they might, if they chose, presume that the evidence, if given, would have been against the case for the prosecution. This omission was not a trifling matter at all, because if these witnesses had appeared and had said that the sounds of attack which they had heard were after dark, the whole case for the prosecution would have crumbled. Bearing in mind the improbabilities of the prosecution story, and the favourable charge of the Judge, and the fact that the verdict was only a majority verdict of 6 to 3, it cannot be gainsaid that the omission of the Judge may have been just sufficient to tip the scale against the appellants.
11. With regard to the question of time there was a curious incident during the examination of the boy. He said that he had gone with his father to the hat at midday. We are told that this must not be taken to be exactly 12 o'clock, but may mean any time, within 2 or 3 hours afterwards. Nevertheless it was obvious that the desire of the witness was to place the visit of the deceased to the hat as early as possible, which would coincide with his return before dusk. During his examination-in-chief the Magistrate asked him the time of departure, and as the boy was unable to give the exact time, he asked him whether it was about the same time as that, meaning the time of the examination, and the boy said: 'Yes, about this time,' which was about 4.30 in the afternoon. If that evidence is correct it would account for the return of Abbas later than that which was suggested by the prosecution. There was evidence to show that the hat did not close at dusk, but was open during the evening and people used to stay late. This would support the suggestion that Abbas did not return early as was alleged.
12. The evidence with regard to the distance of each of Abbas' relatives from him is curious and it is doubtful whether we have heard the full truth about it. It is incomprehensible that the boy was so near as 3 to 4 cubits, and Wahed Ali so near as 10 cubits, and that no attempt was made by either of them to come to the assistance of Abbas. Further, each of the witnesses speaks of having approached Abbas after the attack. It seems to denote that they were much further away than they suggested. The object of making the distance as short as possible is of course obvious because it enabled the witnesses to depose to the identification of the accused. In the evidence about identification, a number of witnesses spoke to Abbas and his relations, having said that there were two other persons as well as the two appellants, and that on being questioned they gave out the names of the two other accused. This incident seems to indicate that neither Abbas nor his relatives recognized the two accused, and furnished their names on suspicion. If they were ready to do this, they might be just as ready, in a similar way, to furnish the names of the two appellants without having in fact recognized them. The probability that Abbas and his relatives were some distance apart is strengthened by the fact that they did not go to the hat together, nor did they do their purchasing there together; and as the hat was not closed when it is alleged that they left, no reason seems to have been given why they should all leave the hat at the same time. It seems much more probable that they loft at different times. All the witnesses are agreed that Abbas was leading. Wahed Ali said that 'Abbas was ahead of us all'. He also said that although he was only 10 to 12 cubits behind the Haji, he was attacked in the way which I have described, before he could get near him to help him. He said that at that moment he had come to within 3 to 4 cubits behind the Haji, yet he made no attempt to protect Abbas or arrest his assailants. The fact that no one did arrest them would be accounted for if in fact the names of the assailants were unknown as was suggested by the defence. Even when the chowkidar arrived it was not suggested to him that he ought to arrest the accused. There is evidence that Abdul Sheikh who did not fail to identify all four persons subsequently was at first, as he admitted, able to recognize only two. He said that he could not recognize the other two accused because he had receded back through fear. This attempt to improve upon an important part of his evidence, makes one distrustful about the rest. Ahadulla, who was only 30 or 40 cubits away, frankly admitted that he was unable to recognize anyone. According to this witness, when he came up he found that the others, that is to say, the son, Wahed and Abdulla were asking the Haji who were the persons who had assaulted him. Then he corrected this and said that 'they did not ask him but I asked him.' If his first statement were accurate this would support the story of the defence that the first accusation came from Abbas himself.
13. Before the Magistrate this witness stated that 'Abbas on inquiry said that the wounds had been caused by sale' which confirms the first statement which he made in his evidence before the. Sessions Judge. The witness Md. Ibrahim Master, on' being asked whether Wahedulla and Abdul gave the names, said that 'the names of these two were given by the Haji,' but then corrected himself and said: 'These two persons were also accused by Abdul Haji and Wahed.' The first answer-that this witness gave seems to confirm the view that the first accusation came from Abbas himself. The evidence of the witness, Asequeulla Munshi, a student who was called into perform the towba ceremony is not very satisfactory.. He seems to have given his evidence in-a state of confusion and more than once said that he was unable to understand why he had been sent for on the night of the attack. According to him, when he got to the tank, Abbas was not on the point of death, and was so composed that the witness was unable to gather why he had been sent for. He said that there were others there who could well have performed the ceremony. The criticizm might be made reasonably, that this part of the story was concocted for the purpose of bolstering up the case for the prosecution. Of the matters to which I have referred, some may be of minor importance, but taken together they leave an impression upon the mind that the Court is not even yet in possession of all the facts of this story. It does not ring true. There are a number of discrepancies in the evidence and a very large number of improbabilities in the story. These impressed the mind of the Judge, and also the minds of three at least of the members of the jury, and in view of these circumstances the omission of the Judge to inform the jury of their right of presumption given by Section 114, Evidence Act, possibly and even probably resulted in weighing the balance against the appellants. It seems obvious that the evidence in this case ought to leave a reasonable doubt in the mind of any one considering it carefully, and when there is such a doubt, the benefit of it must be given to the prisoners. It is much better that a guilty man should be acquitted than that an innocent man should be wrongly convicted.
14. Taking all the facts to which I have referred into consideration we are of opinion that the appeal must be allowed. The convictions and sentences imposed upon these prisoners must be set aside, and they must be set at liberty.
15. I agree with my learned brother in the order which he proposes to make. This, in my opinion, is a case in which we ought to interfere on the ground that there has been a misdirection in the charge to the jury. It appears that some independent witnesses came upon the scene soon after the occurrence. But none of them was examined by the prosecution. The Judge in his charge no doubt told the jury that this was a point which deserved very serious consideration. But he did not tell them that from the non-production of those independent witnesses the jury might presume against the prosecution on the question of time of occurrence, a point which was of very great importance in the case for the prosecution. This misdirection, in my opinion was at least to a certain extent, responsible for the verdict of the jury. That being so I would allow the appeal, set aside the verdict of the jury, acquit the appellants and direct that they be set at liberty immediately.