1. This is a reference by the learned Sessions Judge of Comilla under Section 307 in the case of three persons Yunus Ali, Abdul Waheb and Rahamannessa. They were all three charged under two counts: (1) that on or about the 26th of January, 1927, at Mudafar they conspired to murder one Aliban and so committed an offence under Section 120B read with Section 302 : (2) that on or about the same day at the same place they did murder Aliban and so committed an offence punishable under Section 302, Indian Penal Code. At the trial the learned Judge held that there was not a scrap of legal evidence that these persons did murder Aliban and he directed them to find a verdict of not guilty on that charge which they did. With regard to the charge of conspiracy the Jury by a majority of 5 to 2 found all the accused not guilty. The Judge disagreed with the verdict holding they should be found guilty of conspiracy. One difficulty at once arises in my mind on the facts as alleged and proved, if the three accused were not the actual perpetrators there is no evidence of any sort that they conspired to commit the murder. Of the facts proved the one relied on to prove conspiracy is the fact that these three accused happened to be together at the house of Rahamannessa, one of the accused, where the victim Aliban was staying on the night of the alleged murder.
2. All the other evidence is simply evidence to show that the girl was murdered. Obviously, the mere presence of the accused at the house where Aliban was staying would not be by itself convincing evidence of conspiracy to murder her unless it can be shown that they were in some way connected with the murder.
3. The only evidence to prove this is the alleged fact that Aliban was murdered. There is no evidence to show or suggest nor indeed do the prosecution suggest that if it was not the accused it was by some one instigated by the accused that Aliban was murderediand as far as I can see the case of the prosecution was that it was the accused who actually committed the murder.
4. In the view which the learned Judge has taken, it is perhaps difficult to see how he could refer the case. To deal now with the facts of the case.
5. They are briefly these:--That one Isab Ali lives in the village of Mudafar with his wife Rahamannessa one of the accused in this case. A certain young woman named Aliban whose death is the subject of the trial came on a visit to him brought by her uncle Naimuddi. Isab seemed to have fallen in love with the girl, managed to keep her in his house and to have proposed to her uncle Naimuddi to marry her. Naimuddi was not willing but the girl remained at Isab's house on various pretexts.
6. On the day of occurrence the 25th January, 1927, Isab seemed to have been away at Munshiganj in Dacca District to see Naimuddi and the girl was left with Rahamannessa. The next morning her dead body was found floating in a tank not very far from Rahamannessa's house and it is the case of the prosecution that Rahamannessa, Yunus, her son-in-law and Abdul Waheb, her brother, conspired together and murdered the girl. It is suggested they first partially or completely suffocated her, dragged her to the tank and threw her in and she either died from drowning or from asphyxiation. The defence seems to suggest either that she fell into the tank after easing herself or that she went out to ease herself that night and was seized by some unknown persons and drowned in the tank. The first point to be considered is what was the cause of death. On this point we have the medical evidence which should be read carefully. The doctor cannot say whether the death was due to asphyxia, that is to say, I presume some person holding something over the girl's mouth so that she could not breathe or death from drowning. He says that death was due to asphyxia and then says asphyxia may be due to hanging, strangulation throttling, suffocation or drowning. He did not consider this a case of hanging or throttling. He goes on to say that this may have been a case of shock caused by falling into the water.
7. After a careful consideration of the medical evidence the only conclusion I can come to is that the doctor cannot say whether she died from drowning or from asphyxia caused by suffocation. At one portion of the evidence he seems to have thought that it might have been a case of shock caused by falling into the cold water. The only conclusion to be come to from the evidence is that it gives no indication as to whether the death of the girl was accidental, homicidal or suicidal. Obviously if it was a case of shock by falling into the cold water it might be accidental as well as suicidal or homicidal. If it were due to drowning it might equally be one of the three.
8. Only if it were due to suffocation could it be positively said that it was homicidal.
9. [His Lordship referred to the other evidence and proceeded:].
10. Unless it can be established that the girl was murdered or at any rate the murder began in the house it seems to be impossible to come to the conclusion from the fact that the three accused were seen at the house of Isab on the night when the girl is alleged to have been murdered that the three accused conspired to muder her. No doubt a conspiracy cannot often be proved by direct evidence. It has often to be inferred from circumstances. It, however, seems to me in the present case that unless it is proved that the three accused murdered the girl, there is no evidence to show they conspired to murder her. That Rahaman-nessa hated the girl is no doubt obviously clear. It is but natural she should. The other two had no particular reason to dislike the girl except that they are related closely to Rahamannessa. No doubt they absconded but too much importance cannot be attached to that fact.
11. Evidence goes to show that one of them was in the village the day after the occurrence and they may not have fled till they learnt they were suspected. With people of this class mere absconding does not go for a great deal.
12. Looking at the nature of the evidence in this case I feel that unless if it can be proved that the three accused murdered the girl if she was murdered it cannot be held that they conspired to murder her. In the case it is impossible to separate the conspiracy from the actual crime. If one is not proved--neither is the other.
13. I would reject the reference and acquit the three accused.
14. As there is a difference of opinion between my learned brother and myself the case will be placed before the Hon'ble the Chief Justice with a view to its being laid before a third Judge.
15. I regret that I cannot agree with my learned brother in this case. In my opinion there is clear evidence of conspiracy to commit murder in which conspiracy each of these three accused persons is implicated.
16. Now, the first point to be decided is, whether the girl was murdered or whether she met her death in one or other of several alternative ways such as suicide, drowning after an epileptic fit or otherwise by accidental drowning. These three alternative ways were suggested by the doctor who gave evidence in this case but I can find very tittle evidence to support any of them--with regard to suicide that can be disposed of in a few words. There was no reason why the girl should commit suicide. She was quite happy with Isab Ali who was fond of her, was anxious to marry her and had given her presents. No reason has been suggested why she should commit suicide. With regard to epilepsy there is no evidence that the girl suffered from epilepsy or any other disease. On the contrary her uncle Naimaddi definitely disposed of this suggestion.
17. With regard to accidental drowning no reason has been suggested why the girl should go voluntarily to the tank where her dead body was found. This tank is some distance away from the bari of Isab Ali and was not used by the occupants of his bari. The evidence is that the girl Aliban was never seen near the place and never even visited Mridha's bari which adjoins this tank. The occurrence took place in the middle of the night in January which is almost the coldest part of the year Why she should go to a tank at a distance in the middle of a night in January I cannot understand. For all these reasons it seems to me that there is no foundation to support the theory of accidental drowning.
18. In my opinion the facts and especially the medical evidence in the case is consistent only with murder. I agree with the learned Judge in the Court below in his attempted reconstruction of the crime. Shortly it was as follows: The girl was suffocated while asleep in the hut--probably she was not then completely suffocated and was taken out of the hut and in that condition partly carried and partly dragged towards the mango tree. Suffocation not being complete there was a partial revival near the mango tree where a struggle took place. She was then suffocated again probably more completely this time and taken towards the tank into which she was thrown. It may be that when she was thrown into the tank she was not quite dead. In my opinion the medical evidence is consistent with each and every particular of the above theory. I do not consider that the way in which the medical witness gave his evidence was very satisfactory. He seems to have approached the case with a prejudice against coming to the conclusion that a murder had been committed. Medical experts and others such as Judges who have to form opinions and exercise their judgment should have regard primarily to the facts and not draw upon their imaginations. Otherwise the administration of justice would depend upon individual idiosyncrasies and become unstable and unworkable. It is clear that the girl did not die from drowning. There was no water in her stomach and the doctor admits that this is found almost invariably in cases of death from drowning and for this reason he rejects that hypothesis. He is also of opinion that she did not die from strangulation because there were no marks on her neck. He says that there were signs on one hand of what is known as washerman's hand and, therefore, in his opinion the girl could not have been dead when she reached the water. But he admits that washerman's hand can develop either after the body has been thrown into water when alive or shortly after death. If, therefore, the girl was just dead or on the point of death when she was thrown into the tank, it was quite possible for washerman's hand to develop though the usual symptoms of drowning might be absent. The fact that there were signs of a struggle near the mango tree is not inconsistent with suffocation if we assume that the girl was not completely suffocated in the hut, and partly regained consciousness in the course of her removal to the tank and the medical evidence is entirely consistent with such an assumption. Two abrasions were found on the girl's back, which point to a struggle or to dragging. It is true that some of the usual signs of asphyxia were absent, e.g., swelling of the veins but the doctor admits that these symptoms do not occur invariably. With regard to his final suggestion that death might have been due to shock caused by falling into the water from a height--it is sufficient to observe that no evidence exists of any height from which the girl could have fallen. The fact that the brain and other organs were congested which is a sign of slow death is again consistent with the theory which I have already indicated.
19. For these reasons I have come to the conclusion that the girl was murdered. 14. [His Lordship then considered the evidence as to the place at which murder was committed and concluded as follows:--].
20. In my opinion the whole of the evidence points conclusively to the fact that the girl was smothered by these three accused persons acting together or by one or two of them, They were the last people who were seen in her company when the was alive. It is quite clear that all three of the accused were in Isab's hut with the deceased girl at or about prayer time unless we reject the evidence of P.W. Nos. 1 and 2 : and I see no reason for rejecting it. In fact Rahamannessa admitted that one of the accused Yunus Ali was there. The two male accused intended to sleep at the hut that night, because the evidence is that pillows and quilts were provided for them. Why were they there at all? It was an unusual occurrence for these two men to visit Isab Ali's bari. Prosecution Witness No. 1 says that she had never seen them there before. Prosecution witness No. 2 says that they were seen there occasionally. Yunus Ali himself says that he was not on good terms with Isab Ali and used to go there only once a year.
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21. Finally, we have the fact that the two male accused absconded. I disregard altogether the evidence of Abdul Gani Sarkar which I agree with the learned Judge is worthless. It has been said and quite properly that too much importance must not be attached in this country to the fact that people abscond. But the way in which the two male accused absconded in this case is of the utmost importance. They absconded before the girl had been missed and before the discovery of the body. They absconded before any body had suggested that any crime had been committed. What innocent reason has been given or can be suggested for the sudden departure of these men in the circumstances of this case? They went away during the night although they had intended presumably to sleep at Isab's hut. They went away before the girl was missed by any body and before the body was found. I think these facts amount to most damning evidence against these men and I cannot conceive any reasonable explanation of their conduct unless it be that they were well aware that the girl. had been murdered.
22. I agree with the learned Sessions Judge that it would be difficult to frame a charge of murder against the accused because it is not clear from the evidence whether one or two and which, or all three of these persons actually took part in the commission of the deed. But, in my opinion, there is clear evidence against each of them of conspiracy to murder the girl. That evidence as I have shown is of such a kind that it leads to the inevitable conclusion that the crime alleged in this case could not possibly have been committed except by and wtih the knowledge, consent and agreement of all these three persons. It is often impossible as in this case to obtain direct evidence of conspiracy to commit crime. One has to rely upon facts from which it is possible and reasonable to infer a common design. In my opinion there is ample evidence in this case upon which and from which there should be drawn the inference of a common design on the part of these three persons to murder Aliban.
23. I think the verdict of the Jury was unsatisfactory. Their answers to the question put by the learned Sessions Judge show that they had not appreciated the character or weight of the evidence.
24. I consider, therefore, that the reference made by the learned Sessions Judge should be accepted, and that each of the three prisoners should be convicted of conspiracy to commit murder and sentenced to death.
The case was heard by C.C. Ghose, J.
Babu Priya Nath Dutt, for the Crown.
25. Mr. A.K. Fazlul Huq and Babu Jahnabi Charan Das Gupta, for the Accused.
26. This matter comes before me under Section 429, Criminal Procedure Code, in a reference made by the learned Sessions Judge of Tipperah under the provisions of Section 307 of the Code, my learned brothers Mr. Justice Cuming and Mr. Justice Lort-Williams having disagreed as to the order which should be passed in such reference.
27. The accused before me are three in number and their names are as follows:--Rahamannessa, widow of Isad Ali Diwan, Yunus Ali, son-in-law of Isad Ali and Abdul Waheb Munshi, brother of Rahamannessa, They are charged under two heads: first, with having committed on the 25th of January, 1927, the murder of one Aliban, being an offence punishable under Section 302, Indian Penal Code, and, secondly, with having conspired to do an illegal act, namely, the murder of the said Aliban, an offence punishable underl Section 120-B, read with Section 302, Indian Penal Code.
28. The Public Prosecutor did not press the charge of murder under Section 302, Indian Penal Code, and thereupon the learned Judge directed the Jury that, inasmuch as there was no evidence whatsoever on the record that these three accused committed the murder of Aliban they should return a verdict of not guilty under Section 302, Indian Penal Code. This the Jury did. As regards the charge of conspiracy under Section 120-B read with Section 302, Indian Penal Code, it appears that the Jury were divided in their opinion. Five of the Jurors were of opinion that, the accused were not guilty whereas two of the Jurors held that the accused were guilty. The learned Judge was of opinion that the verdict of the minority was right and he came to the conclusion that it was necessary in the interests of justice to make a reference to this Court. The verdict of the Jury was delivered on the 28th July, 1927, and the hearing of this reference came on before my learned brothers Mr. Justice Cuming and Mr. Justice Lort-Williams on the 13th March, 1928. Mr. Justice Cuming held on the facts of this case that he could not accept the reference and was of opinion that the three accused should be acquitted. Mr. Justice Lort-Williams, on the other hand, was of opinion that the reference should be accepted and that each of the three prisoners should be convicted of conspiracy to commit murder and sentenced to death.
29. In a matter of this description, I am in entire agreement with the view taken by Mr. Justice Woodroffe in Reference No. 26 of 1905 under the provisions of Section 307, Criminal Procedure Code, decided by him on the 26th August, 1905, namely, that the verdict of the majority of the Jury should not be interfered with unless it is apparent that the case is a very clear one. The fact that the verdict of the Jury has the assent of one of my learned brothers is ordinarily in itself sufficient to show that the case is not such a clear one as would justify me in reversing the verdict of the Jury. I do not propose, however, to rest my decision on mere abstract principles. I have acquainted myself with the contents of the paper-book from cover to cover and I have also studied with care the differing judgments of the two learned Judges of this Court. In my view there is very little evidence upon which the verdict of the Jury can be interfered with and it follows, therefore, that the reference should be rejected.
30. [Note:--The rest of the judgment is not, material for the purposes of this report.--Ed.]