1. The prosecution case is that the two appellants Kailash and Saman with three others seized and carried off Modhu Sudhan Rishi in a boat on the 2nd of November last at about 8 30 p. m. at Brahmanbaria and thereafter robbed and murdered him. The appellants have been convicted under Section 396, Indian Penal Code and sentenced to death and also under Section 120-B, Indian Penal Code and under Section 364, Indian Penal Code. The learned Counsel for the Grown admits that in two respects this trial has been defective. In the first place evidence of bad character and of previous convictions has been admitted contrary to Section 54 of the Evidence Act, and secondly, the examination of the accused under Section 342, Criminal Procedure Code goes beyond the scope of that section being in the nature of a cross-examination.
2. On the first of these grounds this case would in any case have to go back for re-trial inasmuch as the learned Judge failed to warn the Jurors that they should exclude this part of the evidence from their minds and not allow themselves to be influenced by the accused Kailash's admission of previous convictions for theft, or by the statement of the approver that the accused used to go about together committing thefts and burglary and this evidence may have influenced the Jury adversely to the accused.
3. It remains, however, to consider whether in the circumstances of the present case a re-trial should be ordered.
4. A careful consideration of the evidence indicates first, that the evidence of the approver is unreliable; second, that there is no reliable evidence that the appellants were identified as amongst the men who abducted Madhu Sudhan; third, that the circumstantial evidence is not sufficient to warrant the conviction of the appellants. The approver is the first cousin of the widow of Sudhan. He and Mohan were on the best of terms and used to frequent each other's houses yet he says he joined, at the request of the other accused in this conspiracy to murder Madhu Sudhan because the latter was a witness against the accused Saman in a theft case, (in his confession the approver said it was a civil suit) brought by Dukhai. This alleged motive appears to be non-existed, for Dukhai has not been examined, and the approver's statement has received no corroboration from the prosecution evidence. The approver says that the four accused came to his house beforehand and told him that they proposed to waylay and murder Madhu Sudhan and take away what he had with him; but he subsequently says that it was only when Madhu Sudhan was actually brought to the boat that he realized that the object was to rob him, and that he did not know that they intended to take Sadhan's life till they drew the dao, that he was deceived into going and was not a willing participant in the murder. He says Kailash threatened him, saying that if he interfered he would be murdered and he kept quiet out of fear. Thus he tries to exonerate himself, and does not admit his own guilt. The Inspector says that it was after he had shown the approver things found in his house that the latter confessed. But the only possibly incriminating thing found in the approver's house was a dao on which there were brownish stains. The Chemical Examiner subsequently found that these were not blood stains. Another example of the approver's mendacity in his statement regarding the hide-trade. To explain the money found in their possession the accused say that they made it in connection with their trade in hides. The informant Haridas says that the accused Kailash lives jointly with his father and has a hide business and that the other accused also had a hide business up to the last Bakrid. The approver's statement, therefore, that the accused have not had any such trade for the last four years appears to be false.
5. As regards the occurrence the approver's evidence is improbable in parts. It has been contradicted by other prosecution evidence in important points and has not been corroborated in other points where one would have expected corroboration.
6. The prosecution case is that Madhu Sudhan alighted from the train at Brahmanberia about 8 p. m. It is said he was followed from the station by Kailash and Saman; seized in a lane near the river ghat by Kailash, Saman and Piyari and carried by them to Kailash's boat--(the boat keeping close to ghats at which there were people instead of in the middle of the river which is 100 yards wide) in which he was taken 11/2 miles down the river which passes through the town. Then his throat was cut and his body was thrown out of the boat and sank in the water.
7. The approver says Madhu Sudhan was making a groaning noise the whole way down the river though he was gagged and held down by three of the accused (some of the witnesses say he was making a very loud noise). Inspite of this no attempt was made to follow the boat though there were boats lying in the river at the time within 100 yards of the starting point, just after the accused's boat passed the boat of the witnesses Debendra and Mohendra who questioned the accused as to the noise, Madhu Sudhan was able to make an appeal for his life but still did not cry out for help though the approver does not say that he was threatened or warned not to do so. Another curious point is that the accused did not make any attempt to ascertain whether Madhu Sudhan had any money in his possession before his throat was cut through they could of course have easily done so. Again it seems imprebable that after the murder the accused should have returned to their houses immediately though they heard the golemal in the village and though on his way to his bari the approver found that there was a baitak being held there in which there were Police Officers and says that he was immediately arrested there by his 'brother' Chandi. He had the dao with which Madhu Sudhan was killed in his hand and does not explain why it was not seized at the same time but was some days later produced by his daughter from his house.
8. There are obvious improbabilities in this story. Now let us see to what extent it is corroborated.
9. Witness Chand Mean met the accused Kailash at the station and the latter, apparently quite unnecessarily, informed him that he was awaiting there for a man. Chand Mean further says that while he was having tea there, he saw the accused standing with his back towards him and recognised Saman by the gamcha he was wearing. The witness says, that when he heard of the crime he mentioned having seen the two accused there to Malu. Malu has not been examined to corroborate this.
10. The next witness to see the accused is Abdul Momin a boy of 14 years. He met Madhu on the road and spoke to him, and 60 or 60 cubits further on he met Saman and Kailsh going in the same direction as Madhu. When he heard of the arrest of the accused he informed Bishnu of what he had seen. Bishnu has not been examined to corroborate him and there is no corroboration of this evidence. The next witness is Bonamali. Hearing a sound described as 'bho bho' he ran out of a shop on the Tan Bazar Road and on nearing the river saw a man being carried into an open boat by three men. He asked what was wrong but got no reply. Dukhai was with Bonamali at the time but Dukhai has not been examined. A few minutes later Hari Mohan and others came up. Hari Mohan saw a man being held down in the boat by three men while two others were rowing. He also called out to them but got no reply. The approver only alludes to one man having challenged them at this point. Both Bonamali and Haridas say that they recognised the accused Kailash and Saman. Bonamali says he told the people that came up that he had recognised Saman and Kailash. Hari Mohan says he told no one until he deposed before the Senior Sub-Inspector 1 1/2 hours later. He says he did reveal the names because he was not asked and it did not strike him to tell the names earlier, and this although both he and Bonamali immediately after they had seen the man carried off came to the place where the bundle of clothes etc. dropped by Madhu was lying and spoke to those who had collected there. It was just after this that Haridap, brother of Madhu identified the bundle as Madhu's and went off to the thana but did not mention there that Kailash and Saman had been identified.
11. The next witness is Girish who was at lower ghat. His attention was attracted by strange sound from boat and seeing three men holding another down in the boat asked what was wrong. Kailash said one of them had been drinking. Girish only recognised Kailash by his voice though the boat passed at a distance of 11 or 12 cubits, whereas Bonamali says he was able to recognise the two men from a distance of 20 or 25 cubits. Hari Mohan and Bonamali came there and asked Girish if he had seen any boat passing. Girish told them he had but apparently did not tell them he had recognised Kailash, nor do they or anyone else corroborate him.
12. After that witnesses Debendra and Mohendra in their boat hearing groans from the accused's boat asked Saman what the noise was and were told that one of them had been drinking. The boat passed at a distance of 8 or 10 cubits and they say they recognised all the accused. The approver says he cannot remember if there was any talk between them and Mohendra and Debendra and adds 'they did not ask us anything.' Debendra says three of the men were holding another down and there was a loud noise of groaning. Mohendra on the other hand, says the groaning man was making no efforts to get up. Further on witnesses Ganesh and Bipra say that they were in a boat and passed the accused's boat at a distance of 10 or 15 cubits and recognised them all. Hearing sounds from the accused's boat Bipra asked what it was about? Kailash and Saman replied that one of their member had been drinking and they were taking him to Bhadughar where their sister's husband lived. The accused have in fact a brother-in-law at Bhadughar. Is it likely then that the accused would have given this information to Ganesh and Bipra just before they were going to commit a murder or is it likely knowing apparently that they had been identified, that they would commit a murder immediately afterwards? The moon was still fairly high at the time we are told. The approver says that they met no boat except that of Debendra and Mohendra on the way and his evidence, therefore, flatly contradicts that of these two witnesses. Debendra, Mohendra, Bipra, Ganesh are all closely related to each other and to Madhu Sudhan. Ganesh met the informant Haridas after this but did not tell him what they had seen. Bipra did not tell him till two days later. Both these witnesses live close to Haridas.
13. The approver states that after the body was thrown out of the boat and at the same place three Kaibartas questioned them as to what they were doing there. They said nothing, but when asked where they lived said they were men of Bhadughar. Corroboration by these Kaibartas would have given important support to the prosecution case and we have no evidence as to whether they were untraced or why they have not been examined. There were lamentations at Haridas house that night and many of the villagers including most of the witnesses collected there to discuss what had occurred and yet Haridas says 'I did not hear even next day of any one recognising the accused or my brother. I do not know even now of any one recognising my brother or the accused in the act of his being taken off. Again witness Chandi Charan whose bari adjoins that of Haridas says 'we did not hear that day or later that the accused were recognised in the act of running off with Madhu.' Another witness Sadhu Charan Chaukidar says 'I did not hear the people when they returned say that any of the present accused had been recognised as running off with Sudhan.' Sub-Inspector Subarna Kumar Bose was deputed to make the preliminary investigation. He says that after searching the accused's houses at which the accused except Kailash were present, he made a list of the things seized and as long as he was there he did not hear who took Madhu Sudhan away. He got back to the thana (1/4 mile distant) with the accused and the things at 5 a.m. He did not enquire from any one if the accused had been recognized when they were taking Madhu into the boat. Finally we come to witness Rebati. He was present at the investigation that night and was at the starting ghat with Bonamali and Hari Mohan when they say they identified Saman and Kailash and also spoke to Girish at the ghat whence he identified Kailash. He says 'I did not hear that night that the people who had run off with Madhu Sudhan had been recognized.' There is no suggestion that any of these witnesses are hostile to the prosecution and yet the learned Judge omitted to draw the attention of the Jury to these very important statements in favour of the accused. The circumstantial evidence connecting the accused with the occurrence is very meagre. The most important items are: (1) A black bordered blood stained dhuti which Darsha (P. W. No. 15) says belongs to Saman, was found on the water hyacinth in the water near the jam tree shown in the map. The approver says the jam tree is to the east of the place where the body was thrown out and that after they had gone 1 kani further south Saman threw out his dhuti with which he had wiped blood off the boat. Had the dhuti been thrown out there it could not in the ordinary course have travelled to the jam tree against the current of the river. Darshan has not explained how he was able to identify the cloth and there is no other evidence as to its identity. Saman denies that it is his. (2) The ten rupee notes found in the house of the two appellants. Subarna Sub-Inspector says he searched the houses of the accused on the night of the occurrence but the search lists show that only Saman's house was regularly searched that night. Kailash's house was not searched until two days later. Had Kailash been actually identified amongst the abductors it is strange the search should have been delayed two days, if it was to serve any purpose, but in the circumstances it does not appear that the accused had any opportunity to hide anything in their houses for, from about 8-30 p. m. when the accused were found absent from their houses by the Chaukidar, their houses were watched and they were apparently arrested on their arrival except Kailash who came to his house openly at dawn after the arrest of his son and was not arrested then but subsequently in the town at 9 a.m. Of the ten rupee notes found in Saman's house 15 were found in an open box, and 9 in a double locked box underneath it. Then two days later 30 were found buried in a tube near the 'paikhana'. Had the notes been the proceeds of the robbery we would have expected to find them all buried together but he had had apparently no opportunity to so bury them. Kailash arrived at his house after his son the accused Piyari was arrested and in the circumstances it is not likely that he would have concealed the notes stolen from Madhu Sudhan in his house especially as he was not arrested till some hours later in the town,
(3) Then as regards Kailash's boat there is no corroboration of the Sub-Inspector's statement that he found it in the high land to the east of the accused baris. Kailsh says it was not found there and that he had gone in search of it as it was not at the ghat. The approver says that there was profuse bleeding in the boat when Madhu's throat was cut. The Sub-Inspector says the blood was not dry when he found the boat. Pieces of wood sawn from the boat bearing blackish stains were sent to the Chemical Examiner but he could detect no blood on them.
(4) In spite of their statement that they were at home that night it appears to be established by the prosecution evidence that the appellants, as well as the other accused, were out and that Kailash did not return home till dawn and Saman did, not return till about 1-30 a.m. Also Kaliash's boat was missing. These circumstances are certainly suspicious but if any reliance can be placed on the evidence of the approver it was an uncommon thing for them to be out at night and, though they may not have been lawfully engaged, it, does not, of course, follow that they were responsible for the abduction and murder of Madhu Sudhan.
14. Thus the circumstantial evidence connecting the accused with the abduction and murder is quite inconclusive. Had the identity of the dhuti been established it would have been a very important piece of evidence, but it was apparently an ordinary cloth without any special marks and it would be unsafe to rely on the evidence of the single witness Darshan an uncle of the deceased and brother of the witness Bipra who has given evidence for the prosecution which seems to be false. The approver's story, with the exception of the meeting with the Kaibartas, has the appearance of a statement built up from known facts for there can be no doubt that Madhu Sudhan was abducted on his way from the station at the place where his bundle was found and carried down the river in a boat and thrown into the river with his throat cut, but there appears to be no reliable evidence that the men who perpetrated the crime were identified in view of the statements of Haridas and others showing that the men who abducted his brother were not recognised. In the absence of reliable corroboration as to the identity of the accused, no reliance can be placed on the approver's statement incriminating them specially as he exonerates himself. He has in places contradicted himself, and his story is in parts grossly improbable.
15. From the first information it appears that the accused were suspected on the ground that they were (in the words of Haridas) men of 'very vicious character' and were found absent from their houses that night. The informant says that 'though outwardly there is no enmity they look upon us with envy'. The accused Kailash, Saman and Jagat are brothers and Piyari is Kaliash's son. Kailash says that they have incurred the enmity of the villagers because they do some business and earn money easily and so the villagers envy them. Both parties trade in hides and it is not improbable that there is trade rivalry between them, The motive for the murder was most probably simply robbery, but it wag not suggested in the first instance when the accused were suspected of the abduction that their object was robbery. The informant Haridas said 'I cannot say now for what purpose they have taken away my brother.'
16. In the circumstances we do not think that the case should be retried. The conviction and sentences of the appellants are set aside and they are acquitted.