1. This is a reference under Section 374 of the Code of Criminal Procedure from the Sessions Judge of Rungpore who has convicted the four accused persons under Section 302 of the Indian Penal Code and passed the death sentence on the first prisoner Gaya Nath Das and sentences of transportation for life on each of the other three prisoners Matal Das, Shashi Bhusan Das, and Nishi Kanta Chandra. The matter has also come before us on appeal by the accused.
2. The Assessors were divided in opinion. One gentleman thought that the deceased Anukul had been murdered, the other Assessor was in favour of the theory that Anukul had died of some disease like apoplexy. The first Assessor gave five weighty reasons for his farther conclusion that the accused were not guilty of the murder of Anukul. These reasons have been examined by the learned Sessions Judge whose judgment is full and exhaustive. We are unable, however, to accept the conclusions at which the learned Sessions Judge has arrived.
3. The first question for determination is whether the deceased Anukul died from the effects of strangulation or rather by throttling, or whether he died from natural causes such as apoplexy or epilepsy or the like. The doctor was examined twice, and the impression left on our minds from a careful and attentive perusal of both these depositions is that he was not by any means certain that the deceased had met with his death as the result of violence. He said no doubt that he hardly thought that the indications he found were consistent with any other cause of death but strangulation. But his view was. that death might have been due to throttling, and he was not decidedly of opinion that throttling was the cause of death. In his original report, dated 13th September, he deliberately wrote, 'death may have been due to throttling.' There were some remarkable injuries on the deceased and among them were a number of scratches on the front part of the neck running downwards. These scratches might have been caused by the nails of the fingers of the deceased either when he was suffering from some fit or other, or when he was endeavouring to release himself from an attack, But if several persons joined in the act of throttling him, and if one of the persons held the deceased's hands, this being the case for the Crown, it is scarcely possible that the nails could have been applied in the manner indicated in the alternative theory.
4. Our attention has been called to the work on Medical Jurisprudence of Hehir and Gribble (5th edition, p. 291), where a case is cited from Chever's well-known treatise. We have referred to the original authority (Dr. Norman Chever's Manual of Medical Jurisprudence, pp. 580 and 582). The facts of that case are extremely like the facts with which we are dealing. There were scratches on the throat such as would be produced by the nails of the hands. From the congestion of the brain and lungs the Civil Surgeon was decidedly of opinion that death was due to strangulation. In delivering the Judgment of the Court, the Judge of the Nizamut Adawlut, Mr. E.A. Samuells, observed that it was necessary to be cautions in cases of this kind because the effects of apoplexy, epilepsy, and other like diseases, might be mistaken for those of manual strangulation, and, in the result, the Court thought that though the Civil Surgeon may have been correct in his opinion as to the cause of death, yet the evidence against the prisoner was much too doubtful to admit of a conviction.
5. There is a similar observation in Taylor's Medical Jurisprudence (5th edition, Vol. I, page 736). It is as follows:
Finger nail marks might be self-inflicted in a struggle which again suggests homicide, though it must be remembered that an epileptic or indeed anyone might thus injure the throat in an attempt to escape accidental strangulation from a collar.
6. On the face of these authorities we are by no means satisfied that the deceased Anukul met with his death from throttling, and the alternative theory is equally probable that he died from the effects of. some fit under which he was labouring. It is also in evidence that there was some gunja smoking on the night in question, and it is of importance that the father of the deceased, when he viewed the dead body of his son, is said to have exclaimed 'haramzada gunja-eater.' In this view of the matter the case for the prosecution is in our opinion untenable.
7. We have further examined the evidence on the side of the prosecution and, more particularly, considered the evidence of the prostitute Hari Priya. We may mention that, the Sub-Inspector who took up the enquiry seems to have arrived at a theory on the day following the night of the occurrence and he expressed that theory in no uncertain terms in his first information report. He says: 'I am of opinion that the said Gaya Nath alias Anukul, alone or being assisted by any or all of his companions Matal Das, Shashi Das, Nishi Kanta Chandra and others murdered Anukul as rival of Hari Priya's love.' It is scarcely necessary to say that a theory should succeed, and not precede, the collection of evidence; otherwise, it is a matter of common knowledge that the evidence may be made to fit in with the theory such as the police officer in this case propounded. The evidence of Hari Priya shows that these youngmen were in her room, and that the usual singing and other amusements were going on up to a late hour at night. It is said that, after a temporary quarrel and reconciliation, the accused persons fell upon the deceased who was lying down indisposed and throttled him. The conduct of the accused is, however, quite inconsistent with this case for the prosecution. We have it that the accused Gaya Nath actually fetched the doctor next morning, that another accused person, Shashi, was feeling the pulse of the deceased and that the story implicating all the four accused in the affair, as subsequently. elaborated, was not put forward until nearly 48 hours after the occurrence that is on Sunday evening long after Hari Priya had been in the hands of the police. We are not satisfied that this girl Hari Priya has told the whole truth. It is at least equally probable, supposing that the deceased met with a violent death, that the occurrence took place when Hari Priya was fast asleep, and that she did not know anything about it as an eyewitness. It is also equally probable that the details which are given are not those which were actually witnessed. There are many circumstances into which we need not go in detail. The story told by Hari Priya in the Sessions Court differed from that before the Committing Magistrate, and we have compared the two versions. The story for the defence does not in any way implicate Hari Priya as having been concerned in the death of the deceased. It is consistent from the very beginning that Anukul met with his death from unknown causes when he was asleep and that in the morning the discovery of his dead body was made and reported to the mistress of the Bari where the prostitutes live. The theory which the Sub-Inspector formed in his first information report does not explain the complicity of the three accused persons, namely, Matal Das, Shashi Das and Nishi Kanta Chandra, and from the evidence given by the women of the Bari it appears that there could have been no real hostility on the part of Gaya Das who was said to resent the presence of the discarded lover.
8. We are, therefore unable to accept this reference.
9. The convictions and sentences are set aside and the appeal is allowed. The accused persons are acquitted and we direct that they be released and set at liberty.