1. The accused Nishi Kanta Banikya was tried by the Sessions Judge of Faridpur with the aid of a jury on a charge under Section 302, Indian Penal Code. The jury unanimously found the accused not guilty of the charge in respect of which he was triad. The learned Sessions Judge being unable to agree with that verdict has made the present reference to this Court under the provisions of Section 307, Criminal Procedure Code.
2. The facts of the case are very clearly and fully set out in the learned Judge's charge to the jury and also in the letter of reference which he has submitted to this Court and it is not necessary to set out those facts over again in my judgment. Shortly stated, the prosecution case was to the effect that owing to ill-feeling which the accused entertained towards the deceased Rai Mohan De, for certain reasons which will be detailed hereafter, the accused killed the deceased on the 10th January, 1924, by administering poison in the dal and milk which the deceased was to take and which the deceased did admittedly take. The deceased was the cook and also the gomastha in the shop of the accused. He took the food at about 9 a. m. of the 10th January, 1924, but felt unwell and began vomiting even before ha had completely finished his meal and notwithstanding the efforts made to bring him round he died at about 5 p. m. on the same day. The first information of the occurrence was lodged at about 1 a. m. on the 11th January, 1924, and upon that an Investigation having been started and completed the accused was sent up and tried as aforesaid.
3. Now there are certain facts in this case which have been clearly established upon the evidence. That the deceased became ill soon after he had taken his meals which consisted of rice, dal and milk, are facts which cannot be doubted or disputed. This has been spoken to by a number of witnesses to whose evidence we need not specifically refer. It has also been established by the evidence of Dr. R.C. Dutt the Assistant Surgeon who made a post mortem examination on the body of the deceased, and also Upon the report of the Chemical Examiner that arsenic was detected in the viscera vomit and other matters. There is another fact which also has been proved in this case to our satisfaction and that is this, viz., that on the 11th January, 1924, when the Sub-Inspector arrived after having received the first information of this occurrence he was shown a box in the shop of the accused and ha took charge of the articles that were in the box. In the box were found some phials and a tin deps which on examination appeared to contain various compounds of arsenic. Arsenic was also detected in the iron pan, the brass thalla and some other articles that were found in the house. All these as I have said, clearly point to the fact that the deceased died of arsenic poisoning and that arsenic or other compounds of arsenic were found in the box in the shop room belonging to the accused.
4. Then we have got to consider whether the evidence in the case proved that it was the accused who administered arsenic to the food which was taken by the deceased. In order to consider this matter it is necessary to refer to the three kinds of evidence that has been adduced by the prosecution in this case. The prosecution has made a specific case to the affect that on account of ill-feeling which the accused bore against the deceased he put arsenic in the dal and milk and they have attempted to prove this, firstly, by soma evidence showing that there was such an ill-feeling and consequently there was a motive on the part of the accused to kill the deceased; secondly, by adducing evidence to the effect that he was seen handling the contents of the wooden box shortly before the time when the food was taken by the deceased; and thirdly, he was actually found boiling the milk and the dal after he had himself partaken of the meal.
5. As to the first item of evidence referred to above, it is necessary to set out very shortly what the prosecution case was as to the ill-feeling. It was to the effect that the deceased Rai Mohan had been in the service of the accused for several years that latterly he had been expressing his unwillingness to serve the accused any longer; that on more than one occasion he left the shop of the accused and the accused triad to bring him back and at last succeeded in bringing him back; that the accused wanted to remove his shop to a place called Naria where the deceased was not willing to go and that there was in consequence of this difference an altercation between the two persons over this matter on the morning of the day on which the occurrence is said to have taken place.
6. As to general ill-feeling that has been proved by a number of witnesses besides the evidence of P.W. No. 2 Sadhanya Banik, there is the evidence of P.W. 3 Dr. Bishnu Charan Banerjee, P.W. 6 Jonabali Sikdar, P.W. 8 Rash Behary Ghos and P.W. 9 Adinath Chakravarty proving that there was difference and ill-feeling between the accused and the deceased with the exception of Sadhanya with regard to whom a suggestion of enmity was put on behalf of the defence, but which suggestion I may say has not been proved to my satisfaction; the other witnesses cannot be said to have been in any way interested; and upon the evidence of these witnesses, it is quite clear that there was some ill-fueling between the two persons, with regard to the quarrel that took place.
7. On the morning of the day of the alleged occurrence, however, the evidence consists of the testimony of three witnesses only namely P.W. No. 5 Profulla Ch. Banika The son of Sudhanya Banikya; and P.W. No. 6 Jonabali Sikdar. On an examination of the evidence of these three parsons it appears that the versions given by them of the quarrel that is alleged to have taken place on that particular morning are not the same. P.W. 1 Sambu Nath Dutt attempts to make out that on Raimohan's refusal to agree to the proposal made by Nishi Kanta to go to Naria, Nishi said; 'If you do not work with me it will be no good for you.' He abused Rai Mohan. Upon that Rai Mohan answered ' What will you do to me? Nishi said: ' You ' will see what I shall do.' Witness No. 5 Profulla goes to the length of saying that Nishi Kanta replied to Rai Mohan that if the latter did not go he would finish him, meaning that he would kill him. The evidence of Witness No. 6 Jonab Ali Sikdar does not go so far as the evidence of either P.W. No. 1 or P.W. No. 5, but only to the extent that there was an altercation in consequence of Rai Mohan's refusal.
8. Upon the evidence of these three witnesses it is not possible to say that it has been proved with any degree of certainty that on the morning of the 10th January there was actually a quarrel between the two persons, or even if there was it was of such a nature as would induce the accused to commit the crime as against the deceased. As against this evidence there is also some evidence on the record to the effect that the deceased and the accused were both packing the goods preparatory to leaving that place for Naria on that very morning. There is also the evidence of Prosecution Witness No. 4 Manosha Charan Nag to the effect that the difference between the two men had been settled by payment of Rs. 5 by the accused to the mother of the deceased.
9. It is not necessary for the prosecution of course, to prove the motive for the crime. It is enough if it is established that the crime was committed. When, however, the prosecution puts forward a substantive case as to the motive for the crime, the evidence regarding the motive has got to be considered in order to judge of the probabilities. Failure to prove motive, however, cannot outweigh the positive evidence as to the crime.
10. As to the occurrence itself as already indicated, the first item of evidence is that relating to the handling of the contents of the box. With regard to this matter there is the evidence of P.W. No. 1 Sambu Nath Dutt. His evidence is to the effect that it seemed to him that Nishi took out something from the box. He says that at that time one Monmohan was present in the shop in which the box was, this Monmohan has been examined as prosecution witness No. 7. No question with regard to the handling of the box appears to have been put by the prosecution to this witness and the witness does not come forward to corroborate P.W. No. 1, Sambhu Nath Dutt. Besides according to Sambhu Nath Dutt the handling of the box, if there was any must have taken place before 9 a.m. when the deceased Rai Mohan is said to have taken his meal, because if the story is true the poison must have been put in the milk and dal before Rai Monmohan actually took his meal. Monmohan in his evidence, however, says that he was in the shop a little before noon. Sambhu's evidence must be received with some degree of caution as he seems to have attempted in the first information which he gave to paint the case against the accused as black as possible; for instance he wanted to make out that the accused refused to call any doctor, that the accused attempted to throw away the dal that was in the karai after Rai Mohan had taken his meal that he went to the kitchen of Sudhanya for the purpose of bringing dal, in order to replace the same statements which are not to be found in the evidence which this witness afterwards gave in Court. He attempted to make out, as 1 have said, that the accused was unwilling to go for a doctor. The doctor who was called, has been examined and he proved that it was Nishi, the accused, who actually called him. Upon this evidence it is rather difficult to hold that the fact that the accused did actually handle the contents of the box, has been at all clearly and satisfactorily proved.
11. The next item of evidence relates to the boiling of the dal and the milk by the accused. If this can be said to have been proved, it certainly is a very strong piece of evidence against the accused. This is sought to be proved by the evidence of P.W. No. 1, Sambhu to whose evidence I have already referred above as also of P.W. No. 5, Profulla Chandra Banikya.
12. Now the evidence of Sambhu on this point is to a large extent discredited by the fact that he denied in the Court of Sessions the statement which he admittedly made before the committing Magistrate to the effect that it was with the knowledge of the deceased Rai Mohan that the milk and dal were boiled.
13. In the Court of the committing Magistrate Sambhu distinctly stated that Nishi said to Rai Mohan: 'Rai Mohan, the milk has not been properly boiled, let me boil it again.' In the Court of Sessions he denied that statement. The evidence of P.W. No. 5, Profulla, in the Court of Sessions was to the effect that when he was coming home after taking his bath he noticed from the road that Nishi was boiling cooked dal again: and when he was asked in cross-examination as to whether he made a different statement before the police he denied having made any different statement. The police officer was examined as P.W. No. 17 and he proved that fact.
14. In order to appreciate what exactly that statement was which the witness made before the police, we have looked into the recorded statement itself. It appears that before the police the witness said that he secretly peeped through an opening in the shop and saw that Nishi was boiling dal and milk. If the witness did really make that statement before the police and we have no reason to doubt that he did it is impossible to believe what the witness said before the Court of Sessions, namely, that he saw casually that the accused was boiling dal and milk. On the evidence of the two witnesses, therefore, it is not possible for us to say that the fact has been clearly or sufficiently proved.
15. Then there are two other items of evidence, though not of such importance as the evidence to which I have already referred; firstly, that shortly after the occurrence Rai Mohan himself suspected that it was the accused who had put the poison in the food. The value of this' evidence really consists in this that at or about the time of the occurrence it was talked about that the accused was the man who had committed the crime. There is no doubt some evidence to that effect but that evidence is to a large extent discredited by the evidence of P.W. No. 12 (the Sub-Assistant Surgeon) whose evidence was that when ha arrived at or about 1-30 or 2 p.m. the deceased complained of his illness, but there is nothing in his evidence to suggest that either the deceased or anybody else at that time had suspected any administering of poison in the food or that it was the accused who had put the poison therein. In this connection reliance was placed by the defence upon the evidence of P.W. No. 13, Krishna Kant Basu. I may say with reference to the evidence of tibia witness that I am not prepared to plane any reliance upon it regard being had to the fact that he deliberately made in his cross-examination statements detracting from and going against the statements made by him in his examination in chief.
16. Secondly, the evidence regarding the conduct of Nishi Kanta, it is said that Nishi was not to be found towards the evening of the day of occurrence. The evidence as to when he actually left the place is somewhat conflicting. But it is quite clear that he was not there from soma time before dusk. The suggestion which Is to be found in cross-examination of the prosecution witnesses is to the effect that he went to fetch the mother of Rai Mohan as nobody else was willing to go for that purpose. It appears upon the record that the mother of Rai Mohan did actually come. She has not been examined as a witness in the case and it is not clear who actually fetched her.
17. In these circumstances it would not be right to hold that the explanation which the accused offered for his absence during the evening was not a true one. There is undoubtedly the fact that the accused was absconding during the police investigation. But on this matter I am not going to place much reliance, regard being bad to the fact that his name was mentioned in connection with the crime and he was suspected This is the state of evidence that there is against the accused. The evidence to my mind shows that very great suspicion does really attach to him. On this evidence, however, I am not prepared to say unless I feel bound to hold that the evidence of prosecution witnesses Nos. 1 and 5 should be accepted, that the case has been proved against the accused either by direct or by circumstantial evidence. With regard to the evidence of prosecution witnesses Nos. 1 and 5, having regard to what I have said above, it appears that their evidence is not of such a character as would entitle this Court to place implicit reliance upon it in the face of the fact that seven jurymen were not prepared to accept their evidence. It may be that if I were to try the accused without the assistance of a jury I should have felt inclined to agree with the-view taken by the learned Sessions Judge. But in dealing with a case under Section 307, Criminal Procedure Code, we have got to give due weight to the verdict of the jury and also to the opinion of the learned Judge. In a case like this I do not think that it would be right for this Court to say that it has been proved to its satisfaction that the verdict of the jury is wrong and that the view taken by the learned Judge is right.
18. The learned Judge has drawn the attention of this Court to the fact that after the jury brought in their verdict, he asked them as to their reasons for the verdict. In adopting this procedure the learned Judge no doubt acted perfectly rightly in accordance with what has been laid down by this Court in the case of Emperor v. Annada Charan Thakur (1909) 36 Cal. 629. But then again there is a difficulty. The jurors all found the accused not guilty. Thereupon the learned Judge asked them the question:
What are your reasons for your verdict?' The answer they gave was: 'We give him the benefit of doubt. We can give no other reason.
19. If the learned Judge wanted to as certain from the jury their reasons for the verdict which they bad brought in, it would have been better if he had put to them specific questions with regard to the issues of fact arising in the case and also as to the evidence of particular witnesses. In my opinion, it is no good asking the jury to give their reasons. Even trained intellects often find it difficult to formulate and put before the Court reasons for an opinion which they hold or which they wish to propound. The learned Judge should have asked the jury as to what view they took of particular facts and also of the evidence of particular witnesses. From the mere fact that the jury were unable to give their reasons beyond saying that they gave the accused the benefit of doubt, I am not inclined to hold that the jury had no adequate reasons for bringing a verdict of not guilty. In my opinion, the verdict of the jury should be accepted; and accepting the said verdict I reject the Reference, and order that the accused be acquitted and released.
20. I agree.