1. This is a reference under Section 307 of the Code of Criminal Procedure by the Sessions Judge of Rajshahye, who disagreed with the verdict of, the jury acquitting the accused persons, Armada Charan Thakur and Protap Shah. The charges against the accused Annada were in respect of offences punishable under Sections 302, 114 and 392 of the Indian Penal Code, and, against the accused Protap under Sections 302 and 392 of the Code. The jury by a majority of 4 to 1, acquitted the first accused, and by a majority of 3 to 2 acquitted the second accused on all the charges. One Kali Charan Thakur, the father of the accused Annada, died during the trial, and another accused, named Abdus Sobhan, was made an approver in the Court of the committing Magistrate, and he was examined as such in the Court of Sessions.
2. Before dealing with the merits of this reference it will be convenient to dispose of two matters of law upon which the learned Counsel for the accused has made his submissions to this Court. Mr. Chaudhuri's first contention is that the committing Magistrate, in tendering a pardon to the approver Abdus Sobhan, illegally omitted to record his reasons for so doing. I do not think that there is any force in this contention, or that the omission was an illegality by reason of which the evidence of Abdus Sobhan is inadmissible for the purpose of considering the merits of this case.
3. The facts, so; far as it is necessary to mention them in this part of the judgment, are these : Halal Khoori, a driver of the postal mail cart plying between Rampur Boalia and Nattore in the District of Rajshahye, was murdered on the night of August 3rd, 1908, at a place on the road to Nattore and situated about four miles distant from Nat--tore. The mail bags were opened and examined and a certain parcel was abstracted. The case has been called the Nattore Mail Robbery Case; and a large force of Police conducted the necessary investigation with the result that, on the 23rd September 1908, the four accused persons whose names have already been mentioned were arrested. Against all the accused a charge sheet was submitted by the Sub-Inspector, Peary Kumar Burdhan, on the 14th October 1908. In that charge sheet the Sub-Inspector suggested that a pardon might be tendered to the accused, Abdus Sobhan, on the usual terms and conditions. The Deputy Magistrate took up the case, and after examination of two witnesses, he drew up a proceeding under Section 337 of the Code of Criminal Procedure to the following effect:
Pardon is hereby tendered to the accused Abdus Sobhan in the marginally noted case Emperor v. Kali Charan Thakur Annada Charan Thakur Abdus Sobhan and Protap Shah under Sections 302 395 and 1C9 of the Indian Penal Code] on condition of his making a fall and true disclosure of the whole of the circumstances within his knowledge relative to the murder of Halal Khoori and of every other person concerned whether as principal or abettor. Abdus Sobhan accepts the pardon and is examined as a witness,' (Signed) Grish Chandra Dutt, Deputy Magistrate, Rajshabye, 15th October 1908.
4. It is quite evident, therefore, that the pardon was tendered to Abdus Sobhan in the course of the enquiry before the committing Magistrate. The facts which led up to the tender of pardon appear on the record, and, that being so, on the authority of the case of the Deputy Legal Remembrancer v. Banu Singh 5 C.L.J. 224 : 5 Cr.L.J. 142 there is no doubt that the omission to state reasons was not only not an illegality but even an irregularity which vitiates the proceedings held subsequent to such tender and acceptance of pardon. The procedure adopted by the Deputy Magistrate was perfectly justified by the facts and circumstances of the case as known to him and appearing from the papers.
5. The second contention of the learned Counsel for the accused relates to the procedure adopted in this Court, on the hearing of tin's reference, and we have been invited by Mr. Chaudhuri to make a reference on the subject to a Full Bench in the event of it appearing that there is any conflict of decision upon the point. The contention amounts to this : That there was really no reason for the Sessions Judge to make a reference to this Court under Section 307 of the Criminal Procedure Code, because, on the face of the Sessions Judge's charge to the jury, it does not appear that the verdict was an unreasonable one. The contention arose, during the protracted hearing of the arguments in this Court, because Mr. Donough for the Crown, did not read the Sessions Judge's charge to the jury until after he had placed the letter of reference and all the evidence before this Bench. If the contention be right, and if, on the face of the charge to the jury, the verdict cannot be called perverse or unreasonable, it was clearly superfluous to enter into the merits of the case and the voluminous evidence on the record.
6. In my opinion the procedure adopted at the hearing was neither unusual nor inconvenient. In the first place, the verdict of the jury was inconsistent. Four jurors acquitted Annada against whom the evidence, if believed, was certainly stronger than the evidence against the accused Protap who was acquitted by a smaller majority of 3 to 2; secondly, in dealing with a reference under Section 307 of the Code the High Court must consider the entire evidence and give due weight to the opinions of the Sessions Judge and the jury.
7. It was held in Emperor v. Chellan 29 M. 91 : 3 Cr. L.J. 371 that the ' opinion ' of the jury in Section 307 of the Cr. P. C, is the conclusion of the jury and not the reasons on which that conclusion is based. I think that if the verdict of a jury is unanimous it coincides with their opinion. It is a divided verdict, the opinion of the minority, no less than that of the majority, must be considered by the Court dealing with the reference. In the present case, the opinions to which due weight must be given are the opinions of three jurors against the-opinions of two jurors and the Sessions Judge. The verdict here is a bare verdict. But supposing the Sessions Judge, after recording the verdict, had recorded (after inviting) the reasons given by the jury for their verdict, we should have been entitled to consider those reasons whether expressed by the majority or the minority of the jurors empanelled. I am disposed to agree with the observations of Mr. Justice Davies at page 95 of the report of the Madras case that the legislature in directing that this Court should duly weigh the opinions of the jury gives an implied authority for the taking of such opinions,' and the Sessions Judge would have done well, before referring this case to this Court to have invited the opinions of the jury and to have given them an opportunity of reconciling inconsistent verdicts in respect of the two accused persons. I am careful to add that the Sessions Judge might have done so, not for the purpose of deciding whether a reference should be made, but after arriving at his conclusion to refer the case to the High Court, and after telling the jury that such was his intention. 1, also, agree with the judgment of Sir S. Subramania Iyer, Officiating Chief Justice, and Mr. Justice Boddam that the circumstance that no such reasons have been recorded by the Sessions Judge does not warrant the High. Court to decline to go into the evidence and to arrive at its own judgment after giving due weight to the views taken by the Judge and the jury as to the guilt or innocence of the accused.'
8. It follows that we have to form our own opinion on the evidence, and this brings me to the third consideration involved in this question of law, namely, whether the procedure which has been followed is in accordance with the authorities, reported and unreported, to which our attention has been called by the learned Counsel for the accused.
9. The circumstances of the case are altogether special. I have already mentioned the inconsistency involved in the verdict of the jury. It may be added that the trial in the Court of Sessions occupied more than six weeks of the time of the Sessions Judge and the jury. It would have been an obvious disregard of our duty to have thrown out this reference merely because it might be argued upon the face of the charge to the jury, that the verdict was not altogether an unreasonable one.
10. The first case to which I may refer is that of Emperor v. Chirkna 2 A.L.J. 475 : 2 Cr.L.J. 357. That no doubt is in favour of Mr. Chaudhuri's contention. But it was a decision of Mr. Justice Richards (sitting with Banerjee, J.) in a reference where neither party was represented and where no authorities were considered. With the greatest respect for the learned Judge I think that his judgment is in direct conflict with the plain wording of Section 307, Code of Criminal Procedure. In his commentary on the Code, Sir Henry Prinsep observes:
The result of legislation seems to be that, unless the Sessions Judge accepts it, the verdict of a jury in. a Sessions Court outside a Presidency town has no longer the ordinary force of a verdict of a jury, and that if the Sessions Judge disagrees with a verdict and submits the case to the High Court, the determination of the case lies with the High Court after full consideration of the evidence and after giving due weight to the opinions of the Sessions Judge and of the jury.
11. In the unreported case of Emperor v. Anaruddin Biswas and Poresh Mondal Reference No. 33 of 1908 decided on the 11th Nov. 1908, the learned Judges (Holmwood and Ryves, JJ.) observe--we cannot hold that the jury were not justified in taking the view that they did or at least that it was not open to the jury to take the view that they did. That in a reference under Section 307 is quite sufficient.' But they go on to consider whether there had been a miscarriage of justice, and it is evident that they considered the case on its merits. In this connection, I shall presently notice another and a matured decision of the same learned Judges in which they have more clearly expounded the law.
12. In the case of King-Emperor v. Anes Mirda Reference No. 6 of 1908 decided-on the 10th March 1908, Mr. Justice Geidt, sitting with Mr. Justice Woodroffe, heard the evidence and, on a consideration of that evidence, they expressed themselves as not prepared to say that the majority of jury were wrong in refusing to act on it. The learned Judges added that ' there is nothing to show that the verdict of the jury was perverse or that they refused to convict the accused on any other ground than the bond fide belief that it would not be safe to convict them on the evidence which was placed before the Court.' In my opinion, the learned Judges did no more than give due weight to the verdict of the jury in that reference.
13. The last unreported case is that of Emperor v. Prosonno Kumar Ganguly Reference No. 14 of 1907 decided on the 27th May 1907, which was decided by Mr. Justice Mitra and myself. There, also, the merits were entered into; and the opinion of the Sessions Judge was considered, and it was pointed out that the element of doubt in the case which, in the opinion of the Sessions Judge, was 1 in 177,000, was in reality much greater and the judgment concluded with the observations that--'the circumstances were very suspicious and it might be that the accused was guilty. But it cannot be said that the guilt of the accused is morally certain.'
14. If any of the unreported cases had been clear authority for the extreme contention which has been submitted to us they would have found a place in the law reports. There are reported cases on the subject and I proceed to consider these. In the case of Emperor v. H. Lyall 6 C.W.N. 253 : 29 C. 128 the reference was against a unanimous verdict of the jury acquitting the accused. Mr. Pugh, Counsel for Lyall, the principal accused in the case, cited authorities to the effect that the High Court must act in accordance with the unanimous verdict of the jury unless it was shown to be perverse or clearly and manifestly wrong. The learned Judges (Prinsep and Stephen, JJ.) overruled his contention, and pointed out that the terms of Section 307 of the Code of 1882, had been altered by subsequent legislation and they observed : ' It is not necessary for the prosecution to show that the opinions of the jury are perverse or clearly and manifestly wrong, as was held in the oases cited to us which were decided before the law was amended in 1896, and expressed as it now stands.'
15. In a somewhat later case King-Emperor v. Chidghan Gossain 1 C.W.N. 135 Mr. Justice Stevens sitting with Mr. Justice Haringfcon, pointed out that the Sessions Judge was not justified in taking up the time of this Court by making a reference in a case in which the evidence for the prosecution was, on his own showing in his charge to the jury, so open to hostile criticism as to justify the jury in regarding it with suspicion,' (page 140). Nevertheless, the learned Judges went very fully into the merits of the case, and they certainly did not reject the reference merely because the Sessions Judge ought not to have made it.
16. The last case to which our attention has been called is a decision of Mr. Justice Holmwood and my learned brother (Mr. Justice Ryves) in Emperor v. Abdul Rahaman 9 C.L.J. 432 : (1909) 2 Ind. Cas. 593 (Infra.) where the two cases which have just been cited were considered. It admits of no doubt that this case is a fuller exposition of the law than that enunciated in the unreported case of King-Emperor v. Anaruddin Biswas and Poresh Mondal Reference No. 33 of 1908 decided on the 11th Nov. 1908, to which reference has been made.
17. The contention of the learned Counsel that the case of Abdul Rahaman should not have been referred under Section 307 of the Cr. P. Code, because the Sessions Judge himself in his charge to the jury, warned the jury that they should certainly pause and consider a particular circumstance in the evidence of the prosecution, and that it was, therefore, fairly open to the jury to acquit the accused, was not accepted, and the learned Judges proceeded to consider the evidence in the case which appeared to be clear and convincing, and the result of the reference was that the accused was convicted.
18. I have now dealt with all the cases cited and, in my opinion, there is no real conflict of decision, or want of uniformity in the procedure adopted by this Court on the hearing of a reference under Section 307 of the Code. It is obvious that, in every case, even where the verdict was unanimous, the Court proceeded to consider the merits and to hear the evidence. I have indicated how the opinions of both the Sessions Judge and of the jury, including a minority of the jury, are entitled to due weight in accordance with the express language of Section 307 of the Code. The procedure adopted by Mr. Donough in the present case was perhaps unusual, but regard being had to the length of the Sessions Judge's charge to the jury and to the evident want of arrangement and method in marshalling the materials present; ed to the jury, we thought that the learned Counsel for the Crown should not be pressed to place the charge before us at an early stage of the hearing. It was subsequently-placed before us, and the contention of Mr. Donough was that the Sessions Judge did not put the evidence against the accused sufficiently strongly before the gentlemen of the jury. We have carefully read and considered the charge for ourselves, and even if it had been read to us at the very commencement of the hearing, we should not have been in a position to say that the jury were justified in acquitting the accused. In the circumstances of this case, it was impossible to limit the hearing or to confine it to a consideration of the charge of the jury and the points made therein for or against the case for the prosecution.
19. There may be cases in which a Sessions Judge unnecessarily makes a reference under Section 307, but in such cases, the Crown would certainly not press the reference, and so it might be disposed of on a bare consideration of the charge to the jury and of the material passages in the evidence. But this is not one of those cases.
20. I would, accordingly, overrule the second contention advanced by the learned Counsel for the accused and proceed to deal with the evidence.
21. I have read the judgment about to be delivered by my learned brother, and, without repeating his observations, I content myself with saying that I entirely agree with that judgment.
22. I agree generally in the conclusions of law arrived at by my learned brother. On the second point I wish to add only a few words.
23. Mr. Chaudhuri's contention is that if it can be shown to this Court on behalf of the accused, that on a perusal of the letter of reference of the Sessions' Judge under Section 307, Cr. P. C., and of his charge to the jury, the verdict of acquittal, (whether unanimous or divided) was not unreasonable, this Court could not, or at any rate should not, go into the evidence and examine the case on its merits, but must, having due regard to the opinion of the jury, reject the reference. It seems to me this contention goes much too far, and is not supported by any one of the cases, reported or unreported, to which he has referred. Among other cases, which have been duly considered by my learned brother, he relies on the unreported case of Emperor v. Anaruddin (4) to which I was a party. That case is no authority for his proposition, for there we did examine the whole record, and, in the result, arrived at the conclusion that we should not disturb the unanimous finding of the jury.
24. In that case the Judge considered that the statements made by the accused were ' confessions ' of their guilt. We pointed out that they were not, but on the contrary were pleas in avoidance.' In that case the scope of Section 307 was not, as far as I recollect, commented on in argument or in issue. It was a peculiar case on its facts and theJudge had misinterpreted the statements of the accused. No authorities were cited and considered, and it was not a considered judgment. In however general terms the judgment may have been couched, it is no authority for the proposition now contended for. Personally I now think the latter part of the judgment has been expressed too widely. adhered to the opinions expressed in the considered judgment which I delivered in the case of Emperor v. Abdul Rahaman (9) in which Holmwood, J., concurred, in which the scope of the section was in issue, and in which authorities were cited and considered.
25. I now come to the merits of the case. The case for the prosecution seems to be very strong, and if the evidence of Abdus Sobhan, the approver, and that of Durlabh, Shib Shanker, Bhawani and Bangsi can be accepted, the inference is inevitable that the accused are guilty. Certain facts are proved beyond doubt. Halal Khoori, the driver of the postal mail cart plying between Rampur Boalia and Nattore, left the carrying Company's office at Ghoramara with some mail bags which he had picked up there some time between 7-30 and 7-45 P.M. on the evening of Monday, the 3rd of August 1908. The mail cart is described as a tumtum built to carry three passengers and the driver. That afternoon, three tickets had been taken for the journey. At the time of starting, however, from Ghoramara, only one passenger was in the cart. At Samsadhipore, where the pony was changed, there were three passengers. At Jhalmolia ferry, where the tickets are checked, there were only two passengers, and the fact that there were three tickets was explained by saying that one of the passengers had got down at or near Samsadhipore. At a spot a few miles further on, Halal Khoori was undoubtedly murdered. Next morning Etim, who is the driver of a rival Staging Company, as he approached a bridge near the 24th mile post, in the early dawn, noticed a pool of blood on the metalled road and close by in a field, a dead body. Etim had with him four passengers, who were proceeding from Rampur Boalia to Nattore. They all got down from the gharry and went up to the dead body which was recognized by Etim and on which were seen several incised wounds about the head and neck. Etim and his passengers then got back into the gharry and went on. They all noticed the mail cart, further on at some distance below the high road and near it two whitish objects which they thought were human corpses. As soon as Etim arrived at Nattore he informed the Manager of the Staging Company of what he had seen. He was told at once to report the matter at the thana. He did so, and the time at which his statement was made is recorded as 7-30 A.M. of the 4th August, by one Peary Kumar Burdhan, a Sub-Inspector of Nattore.
26. Information was promptly given to Mr. Mackerticli, the Sub-Divisional Officer of Nattore, and both Mr. Mackertieh and the Sub-Inspector started off to the scene of occurrence. Mr. Mackertieh states that he reached the spot at about 1 a.m. He noticed a blood stain about a foot in diameter on the metalled road. He found the dead body of Halal Khoori close by in a paddy field and there were marks on the space intervening between the blood-stain on the road and the spot whore the body was found indicating that the body had been dragged to where it lay. Some 50 yards away from the road he found the tumtum without the pony. There was blood on the side board, that is, the upright board at right angles to the wheel guard, and on the spokes of the wheel on the right side of the tumtum. He saw on the ail of the paddy field, where the tumtum was, an empty bag spread out and the contents of some of the mail bags carefully laid on this empty bag. Conspicuous on the top were two insured parcels containing jewellery. One of the parcels which contained silk and cloth was cut open. Some newspapers were also lying scattered about. Some bags had not been opened. Mr. Mackertieh looked for marks of foot prints near the dead body but found none as they seemed to have been carefully obliterated.
27. A detailed examination of the contents of the mail bags showed that the only articles missing were a parcel weighing 180 tolas addressed to the Sub-Divisional Officer, Public Works Department, Pubna, which contained three copies of the Public Works Code and two envelopes containing money order forms. There were altogether 34 mail bags : 24 had been cut open and their contents removed. Of the remaining 10 bags, 9 contained empty mail bags and the tenth, one small parcel measuring 5in. by 3 in. by 3 inches.
28. On the same morning it was discovered that a telegraph, post had been knocked down, and the wire cut at a point not very far from Rampur Boalia and the natural inference was drawn that the cutting of the telegraph wire was connected with the mail robbery and the murder.
29. No doubt, a very plausible theory as to the motive for the robbery was soon formulated. The robbers, whoever they were, were evidently seeking something which they expected would be carried by the mail that evening. As they had left untouched the 10 bags which, on being handled, would demonstrate that 9 of them contained no mails and the tenth only a small parcel, in the absence of any indications that they had been interrupted in their proceedings, it would appear obvious that the robbers were probably seeking some more bulky object. Further, as they had cut open the parcel containing silk and cloth, which has been described, as about a foot or more in length and 8 or 9 inches thick, the inference could be drawn that apparel like that was the objective of the crime. Obviously it was not an ordinary case of theft as no valuables had been removed. On the other hand, it would seem incredible that if the murder of the driver had been committed from personal motives, his murderers would have so thoroughly ransacked the mail bags--an occupation which must have detained them for a considerable time in the vicinity of the high road and of the crime. No other there of the crime, that is probable, has been suggested.
30. Very early in the investigation, as we are informed by Mr. Barnes, the District Magistrate of Rajshahye, and certainly by the 12th August, the idea was formulated that one Kali Charan and his son Annada Charan (one of the present accused) were responsible for the crime, and that their object was to obtain a certified copy of a Will, or, perhaps, as suggested at a later stage in the case, the whole record in which they believed that the copy would be found and which they expected would be sent by the mail cart that night from the office of the District Judge of Rajshahye, to the address of the Registrar of the High Court at Calcutta. It must have been apparent to the Police as, indeed, is suggested by Mr. Barnes's evidence, that the only hope of working out the case successfully depended on the Police to arrest some one of the actual murderers, and that he should become an approver and that evidence corroborating him should be forthcoming. The Police obviously had an extremely difficult case to elucidate.
31. The reasons why suspicion was focussed on these two persons (Kali Charan and Annada) were the following. In December 1906, a relation of Kali Charan, one Jadab Nath Chowdhury, died. He left a Will settling his estate, valued at something between Rs. 1,400 and Rs. 800 (to take the estimate of the rival claimants), on the idol Narayan Doorga Thakur and made the shebaits executors. This Will was propounded for probate in the Court of the District Judge of Rajshahye on the 12th January 1907. Kali Charan objected and filed a caveat. His main contentions were, first, that Jadab Nath was insane and, secondly, that the signature, purporting to be Jadab Nath's, on the Will was a forgery and that it did not correspond with several admittedly genuine signatures of Jadab Nath--many of them on official documents. Kali Charan also filed a counter -suit asking for a grant of letters of administration to the estate of Jadab Nath deceased. The case was fought out strenuously and, on the 27th January 1908, judgment was delivered in favour of the shebaits, and by the same judgment Kali Charan's suit was dismissed. On that day, the record containing the Will was made over to one Janaki Nath, the keeper of miscellaneous records in the office of the District Judge. He deposed that, in the course of that day, he made over the records, without examining them to the head clerk who put them into an iron safe. On the 30th of January, Janaki Nath had the records taken out of the safe with a view to prepare the probate. He then discovered that the Will was missing. The matter was formally reported to the District Judge on the 31st January. Janaki suspected that a pleader, who had been in the case on behalf of Kali Charan and whom he said he had noticed, on the 27th, coming out of his room which he had left temporarily, had stolen the Will. This, at any rate, is what is stated now in evidence, but it does not appear that Janaki Nath said this to the District Judge at the time. Be that as it may, both the pleaders who had been engaged on behalf of Kali Charan wrote to Kali Charan and to his son entreating them to send them a certified copy of the Will--the only one known to be in existence (and which Annada had obtained)--in order, as they said, to save a subordinate official from ruin. Kali Charan seems to have had no particular wish to with hold the copy, but it is said on behalf of the prosecution that Annada Charan, his son, who had been actively prosecuting the litigation on behalf of his father, (who was an invalid) had the greatest reluctance in giving up his copy. On the 14th of March 1908, an application was made, on behalf of the successful shebaits, praying that the non-certified copy of the Will, which was attached to their petition, might be received, as secondary evince of the original Will, and letters of administration issued with a copy of the same. On. that day, the Court passed an order issuing notice to the Opposite Party, that is, Kali Charan, to show cause, by the 7th of April, why' this request should not be granted. In the same order, directions were given to the head clerk to keep the copy of the Will filed that day in safe custody. On the 25th March, Annada appeared and filed his certified copy of the Will On the 8th of April, the Court, after hearing parties, ordered that the certified copy of the Will so filed be treated as contents of the original Will and that the grant be issued with a copy of that copy.
32. Kali Charan and Annada, it is stated, felt their defeat very keenly and Annada Charan went to Calcutta and there filed two appeals, one against the grant of letters of administration to the shebaits and the second in his own case in which letters of administration (as on an intestacy) had been refused to his father. The records of the two cases were requisitioned by the High Court from the District Judge in the ordinary course. The record of the probate case together with the Will was sent to the High Court on the 14th of July and their receipt was acknowledged by a letter which reached Rajshahye on the 22nd July 1908. According to the practice in such cases, the certified copy of the Will, which was treated as the original Will, was not sent in the same parcel with the record but separately in a registered cover. Why both the records were not sent on the same day has not been explained. On the 20th of July, a second requisition came from the High Court asking for the record in Kali Charan's own case. It may be mentioned here that this record was a small and supplementary one. The bulk of the evidence had been taken in the other, the main case. According to the rules, District Courts are required to submit records within seven days from the receipt of the requisition. As a matter of fact, this record was not sent to the post office till the afternoon of the 3rd of August. On that day, there is evidence that the record was very hastily packed up and sent to the neighbouring branch post office shortly before 4 p.m. which was the latest hour at which the branch post office would receive parcels for despatch. Although this office received parcels up to 4 o'clock it did not despatch any after 2-30, so that this parcel was not sent off till the next day, the 4th.
33. All these facts were discovered by the Police in the course of their investigation. They concluded that there could be no doubt as to the instigators of the crime and certainly their theory seems very plausible. They took no definite action, however, until the 22nd of September. On that day, there was a consultation between the various Sub-Inspectors investigating the case and the Inspector Sharafat Ali, of the Criminal Investigation Department, who had been deputed to work it out. On that day, it was decided to search the houses of, and to arrest, four persons, residing in different villages, namely, Kali Charan, Annada, Abdus Sobhan and Protap Shah. Protap Shah, probably, it had been ascertained, was in the service and a tenant, of Annada. Abdus Sobhan, also, they probably knew, was for 12 years or more a professional lathial, in the service of one zemindar or another, and had been employed as such for some years by Annada. This service had ceased some two years ago since when, however, Annada employed him as occasion required.
34. Several of the Sub-Inspectors who took part in this investigation have been examined. They do not inform us that they had any definite information against any one of these four persons at that time. Apparently, the most suspicious circumstance that they had discovered was that, on the night of the murder, Annada and Protap were absent from their homes and had been for two or three days previously. Having come to the conclusion to arrest these four persons, steps were immediately taken by the Police to carry it out. One Sub-Inspector went to Madhukhali and searched Annada's bari, taking away from it some articles of clothing and some correspondence. Ho then signified his intention to search the house of Shib Shanker, a relative of Annada's and more or less closely associated with him. According to the evidence, he told Shib Shankor that his object in searching his house was to see if it contained cloths belonging to Annada which might throw light on the case. Thereupon, it was stated, Shib Shanker said 'why search my house. Search the house of Annada, who had the murder committed.' Forthwith Annada was arrested and taken along with Shib Shanker to Saidpore, where Inspector Sharafat Ali was staying. On the same day, Abdus Sobhan was found, after his house had been searched, in a neighbour's house, in his village Senbhag, and brought to Saidpore where he arrived late that night. Protap and Kali Charan were also arrested on the same day. The Sub-Inspector who arrested Kali Charan admits that, at that time, he had no evidence whatever against Kali Charan but arrested him under the orders of his superior. As soon as Abdus Sobhan arrived, he made a long and full confession to the Police. Shib Shanker, also, after Abdus Sobhan had been examined, made a statement incriminating all the accused except, perhaps, Kali Charan. Shib Shanker and Abdus Sobhan were sent to Nattore where they arrived during the night of the 24th September. They were taken to the residence of a Deputy Magistrate who proceeded at once to record Abdns Sobhan's statement under Section 164 of he Criminal Procedure Code. That statement was not finished that night, but was completed on the morning of the 25th; and then Shib Shanker's statement was recorded. Subsequently, this Magistrate was ordered to verify Abdus Sobhan's confessional statement and was taken by him step by step to the scene of each incident he had mentioned.
35. It will thus be seen that, by an extraordinary coincidence, the police on the 23rd September, if the case for the prosecution is true, arrested the four persons directly concerned in the crime and obtained from Abdus Sobhan a fall statement of his previous history and relations with Annada, the motive for the crime, Annada's chagrin at his failure in the litigation, the hatching of the plot, finally, the details of the actual murder.
36. It is hard to understand why Shib Shanker,, who was not suspected, should at once have betrayed his relative on whom he was in a way dependent; or why Abdus Sobhan confessed as soon as Le was confronted by the police.
37. The Police had now got all the leading features of the case. It only remained to fill in the details of the story. They had discovered from some correspondence found in Abdus Sobhan's house that he had a young relation, named Bhawani, who had recently joined a school at Rajshahye. They had already learnt from the clerk of the Dak Company that, on the afternoon of the 3rd August, a young Bengali had come to buy four tickets for the night mail. He had been told that the mail would be carried that night on a tumtum holding only three passengers. The young man went away and returned shortly afterwards and bought three tickets. The Police say that they at once jumped to the conclusion that this young man who bought the tickets was no other than Bhawani. They accordingly sent for Bhawani. He was told to be present at the Puthia Thana on the 27th September. He went there and, although he says, he was free to come and go, it is strange that he remained at the thana for two days taking his meals there and sleeping there. On the 29th, he wrote out a statement which he gave to the Police. He had first of all denied any knowledge of the matter, but his statement as recorded by himself eventually exactly corroborated the story told by the ticket clerk. On the 30th, his statement was recorded under Section 164, Cr. P. C., by the Sub-Divisional Magistrate at Kattore. The case was now almost complete.
38. On the 4th October, Durlabh was arrested by the Police (there is a mysterious uncertainty about this), and immediately confessed that he had, at the instigation of Annada, cut the telegraph wire on the night of the 3rd of August. He supplied the necessary link showing the complicity of Kali Charan in the plot.
39. As early as the 4th of August, Mr. Barnes had interviewed one Bangsi, a head syce in the service of the Mail Carrying Company at Samsadhipore. Bangsi said that there were three passengers with Halal Khoori the previous night, that he changed the pony and noticed particularly one of the passengers who got down and took a smoke from the chillum of the driver. He described the man and said he could recognize him. On the 8th October, that is, more than two months after, this Bangsi was taken to the Rampur Boalia jail and there, in the presence of a Magistrate, picked out Annada Charan from a number of persons as the man whom he had recognised among the passengers of the mail cart on the 3rd of August. The Police case was then complete,
40. In approaching all this evidence I cannot help feeling a suspicion that the Police, having started with a definite theory and being satisfied that it was the only possible theory tried to get evidence in support of it. At any rate, as I shall show, there are strong indications that the approver, Shib Shanker, and Bhawani varied considerably in their statement after it was apparent that their original statement would not fit in with other circumstances proved in the case. I, therefore, think we must approach the prosecution evidence with great caution.
41. To take the case of the approver. He states that he confessed out of remorse. If that was so one would have expected a very different statement from him. When he was examined on the 24th of September by the Deputy Magistrate, he began with a long history of himself and his previous relations with Annada. The first two and half pages of his printed deposition are taken up with practically irrelevant details. He then states that, on Thursday, the 30th of July, he went to Annada's house and there, in the presence of Protap, he was told that the mails would have to be robbed on the night of Monday, the 3rd of August, and he was then given a kanthai or large sacrificial knife, which, apparently he was told, would be required for cutting up the mail bags. He is perfectly definite on the point that it was on Thursday that this final consultation took place, and there can be no doubt that his memory is exceptionally strong. At the end of his deposition he makes a highly significant statement, namely, that Shib Shanker knew something about this occurrence. In that statement, also, he describes the actual murder in the following manner. After the driver had refused to give up the mails, Protap, who was seated behind him, began striking him on the head, neck and body with the kanthai which the approver said he had stealthily handed to him at the suggestion of Annada. He continues--' Annada Babu went and stood in front of the horse. When Protap was striking the coachman, the horse was going with the coach down the pathway constructed from the sarah downwards on the south side of the bridge. Seeing that Annada went up and stood in front of the horse, Armada said to me what are you doing? you also inflict cuts.' Thereupon I went up and inflicted two or three cuts on the coachman with the knife.' This knife, he says, had been given to him immediately before the murder by Annada. I do not remember (he goes on) on which part of his body I inflicted the cuts. The coachman struggled on the coach. Then I and Protap Shah dragged the coachman down on the ground, and then dragged him away and placed him amidst the paddy that there was on the south below the sarak on the west of the bridge.'
42. When Abdus Sobhan was taken by the Magistrate to verify his. story a few days subsequently, namely, on the 27th and 28th of September, he was equally positive that the consultation took place on Thursday, and he explained to the Magistrate, on the spot, whore Annada stopped the tumtum, after the attack on the driver had commenced, and explained that the tumtum had gone some distance. In other words, he makes out that the driver was not killed on the metalled road itself but partly below it on the temporary diversion road which had been made for use while the bridge was being repaired. Before the comminuting Magistrate, he was equally positive as to the day being Thursday and also as to the fact that, after Protap attacked the coachman, the pony dragged the cart down the diversion path where it was stopped by Annada Charan, and that then the driver was despatched. On that occasion, with reference to Shib Shanker, the approver said that he was at the at chala all the time that the consultation was going on and then the Icanthai was given to him.
43. When we come to the Court of Sessions, there is remarkable change in the evidence of the approver. In his examination-in-chief he names no day for the consultation, but says it was about the middle of Sraban, either on the 12th or on the 14th of that month, corresponding with the 27th or 28th of July. Then, when he is cross-examined on the point, he says it was either a Wednesday or a Thursday or a Friday. When he comes to the actual murder he states that Halal Khoori was killed and taken down from the cart while it was actually on the metalled road. He is positive about this and says this is his last word on the subject. The prosecution say that there is nothing in these discrepancies and that they may be explained as due to for get fulness.
44. On behalf of the defence, however, a very good reason is pointed out why the day, Thursday, was changed. Long after the first statement had been made and reiterated the Police found out that, on that particular Thursday, the 30th July, Protap was at Rajshahye and had there sworn several affidavits in 5 or 6 cases. This fact was established by the production before the Police of the records of the cases to which attention was drawn in consequence of the search they had made among the papers in the house of one of the pleaders who had appeared for the accused in the Will case. The reason for changing the actual site of the murder, although the difference in the distance is very small, is said to be this that the large patch of blood was on the high road itself. If the murder took place on the diversion, and the body was taken down from the cart at that spot, there would have been a great deal of blood there, but there was none.
45. These circumstances do certainly cast even more suspicion than that which ordinarily must attach to an approver's evidence. There are one or two other points about his evidence which are unsatisfactory. He says that the murder took place while the driver was in his cart. The medical evidence shows that all the large vessels of the neck were completely divided, and, on post mortem examination, all the organs were found, naturely, empty of blood. One would have expected that there would have been a great quantity of blood inside the cart. As a matter of fact, none was discovered. Some blood was found on one or two of the postal bags, but apparently no large quantity. Some blood was also found on one of the sides of the cart, and on spokes of the wheels, but not nearly as much as one would have expected if the murder had been carried out precisely as described. Then, again, one of the wheel guards of the cart was broken. There is nothing in the story of the approver to account for this. On the other hand, although this is denied by the approver, one of the prosecution witnesses, Gopeswar, states that he was present when the approver made his first statement to the Police, that, on that occasion, he said that he struck Halal Khoori with a lathi on the side, whereupon, the Inspector of Police told him he was lying and that he must not say so because there were no marks of a lathi below on the body. It is admitted by one of the Sab-Inspectors that Gropes war was present during the recording of the approver's story, although he denies the truth of this episode. Sharafat Ali who actually examined the approver has not been called. The appearance of the cart as deposed to by the witnesses who saw it next morning certainly suggest that lathis might have been used in the attack on the Halal Khoori. The medical evidence also does not very clearly support the approver's story, that one of the fatal cuts on the throat was caused a clasp-knife about 9 inches in length (including the handle).
46. It may be perfectly true that Abdus Sobhan took a part in the murder; but there is a doubt cast on the accuracy of his details. No single circumstance relating to the murder itself, or which pointed to the complicity of either accused was discovered subsequently to and in consequency of the approver's confession. Every really relevant fact he mentioned was already known to the Police or believed by them to exist. He has stated that the object of the robbery was a document connected with the case. After the murder was completed, he says, he held the lantern while Annada examined the contents of the mail bags. On this part of the story his evidence is very vague and unconvincing. One would have thought that the search among the mail bags would have been impressed on his memory, especially if it is true that he was holding the lantern to enable Annada to find what he wanted. One can imagine the intense excitement that must have held them, as they opened bag after bag, and examined each likely parcel. They must have realized their danger, close the high road, with their victim's corpse not yet cold near by, and yet ho can give no details at all, and cannot even say whether Annada took away anything, or whether he said that he had or had not found what he wanted. It seems most probable that Abdus Sobhan, if he committed the murder, went off immediately after the murder, but against this there is his statement that he took away the lantern which was subsequently produced from his bari. Without the lantern the search could not have been made, as the night was dark; and this brings us to another difficulty in the case. Annada is literate and knows some English. He is stated in the charge to have read up to the third class. If he was present, then how came he to take away a parcel plainly addressed to a public works official at Pubna, and why was it necessary to cut open the other parcel which was addressed in Nagri? He must have known that a record despatched from the District Judge's Court to the High Court would be addressed in English. Of course, if Annada was not there, but had the murder committed in his absence, this mistake might be easily accounted for; but this is not the prosecution case at all.
47. Shib Shanker is a young man related to Annada, and he has been in association with him for some time and is in a measure dependant on him. He helped him in his litigation and used to keep accounts at times for him. He describes that, on one occasion, after Annada had lost his case, Annada said to him what would happen if the mail were robbed?' Some 15 days afterwards, he says he was in the house when the conspiracy to rob the mail was planned. He purports to have overheard the conversation without being seen. Subsequently, the day after the murder, he heard Protap Shah ask Annada for his reward. He also says he was present when, a few days later, Abdus Sobhan made a similar request. He says he then asked Annada why they wanted a reward, whereupon, after binding him down to secrecy Annada told him that he had robbed the mail. The actual words he used are said to have been I went from here to Puthia and from Puthia to Rajshahye; going to Rajshahye, I had three tickets purchased there by a relative of mine who reads in the Technical School there. Then one man went from the town up to Talaimari. There ' I and Protap got up. Three of us went up together to Samsadhipore. One got down on the way. We met Abdus Sobhan at a bridge between Kanafokirer Tokia and Chand-pore. After meeting him. I had the mail robbed by them. Then I went away.'
48. This is a most extroardinary statement. It gives unnecessary details of the preliminaries of the journey, and, apparently, the going to Puthia is only mentioned to inculpate Kali Charan, who lived there and is now dead. It is curious, too, that the name of the third man who is said to have come from Rajshahye, and to have got down on the way, is not given. This man would be Durlabh. At the time, however, the Police had no information about Durlabh and did not knew the name of the third man. Then it is very remarkable that, although so many details are given up to the point when they met Abdus Sobhan, the actual murder and robbery is dismissed in the words after meeting him I. had the mail bag robbed by them.' No mention is made of the murder at all, much less arc details given. But the most remarkable point about the statement is that Shib Shanker never asked, and Annada never told him whether or not he had succeeded in finding what he had sought. I can place no reliance at all on Shib Shanker's evidence. There is no probable reason why Annada should take him into his confidence. It is extremely unlikely that he should have been present, although unseen, at the consultation, and it is an extraordinary coincidence that both Protap and Abdus Sobhan should ask Annada for their reward in his hearing.
49. We next come to Bhawani who is 21 years of age and who was admitted in the Technical School at Rajshahye on the 30th or 31st of July 1908. I have already commented on the fact that he made his statement after being, if not actually in Police custody, at any rate, under their control for two days at a distant thana. He stated, when he was examined under Section 164, Cr. P. C, that, when Annada met him and. asked him to buy the ticket, he was accompanied by another man whose name was Protap but he failed to identify Protap subsequently. A letter on the record was found, in Armada's house, written by this witness on the 10th of August. It would seem to be very improbable that the witness had met Annada on the 3rd of that month having regard to the contents of the letter. The letter runs: I am not at present informed of your welfare. I have again come and taken my admission in the Rajshahye Technical School, depending upon your favour. You, wanted to help me something towards the purchase of instruments and also to help me something occasionally according to your means. At present I am particularly in need of money. I have not yet been able to buy any book or instrument. It will help me greatly if you. can give me something now.' Further, Bhawani says that although he heard next morning that the driver of the cart, in which he must have had every reason to believe Annada and his companions to have travelled, had been murdered, and also that two of the passengers had been killed, he made no enquiries either at the office of the Company or elsewhere.
50. Finally the clerk who sold the tickets did not recognise Bhawani when confronted with him; in fact, he said he was not the person to whom he sold them to the best of his belief.
51. The next witness I shall consider is Durlabh who was a tenant of Kali Charan and lived at Madhukhali. He described how Annada, Protap and he went to Rampur Boalia and remained there for two days. On the afternoon of the second day Protap took him and showed him a telegraph post--the lower portion which was rotten--on the high road near Talaimari. On the next evening, he and Protap went on to a point on the road near the Panchani Rajah's basha. Presently, the dak tumtum arrived with Annada and there the witness and Protap got on to it. [This, by the way, is in direct contradiction to what Shib Shanker says Annada told him (quoted supra)].
52. This witness, Durlabh, is positive that the passenger who came in the mail cart from Grhoramara was Annada. The next day, that is on the 4th of August, the Police examined one Dalsagar--another mail driver in service of the Company--who helped Halal Khoori in placing the mail bags on the tumtum, at Ghoramara. He, Dalsagar, said that there was then only one passenger on the cart and that he was seated beside the driver, that he asked him to move while the bags were being placed on the tumtum and gave a description of him. This description was published in the Police Gazette, and it is enough to say that it admittedly in no way corresponds with the appearance of Annada. This witness, Dalsagar, was not called by the prosecution in the lower Court but was very properly sent for and examined by the learned Sessions Judge. The prosecution seek to make out that he had very little opportunity to notice the appearance and dress of this passenger, and that no reliance can be placed on the description which he gave the next day. Exactly the same arguments apply to Bangsi on whom the prosecution place great reliance. The fact remains that he did give a fairly detailed description of this passenger,--to whom he had spoken at a place where there was undoubtedly a good deal of light,--the very next day, and that then the authorities were sufficiently satisfied of his accuracy as shown by the fact that the description given was published and circulated.
53. According to Durlabh, the three of them went on to Samsadhipore where the pony was changed. They travelled on to a distance of about 40 yards when Annada asked the cart to be stopped and both he and the witness got down. Then Annada gave him a dao which was in a bundle on the cart and told the witness that he was to go back to Talaimari four miles away, knock down the telegraph post, which had been shown to him, and cut the wire, adding--after you have cut the wire, you will give information to ray father and leave the dao with him at Puthia.' Witness describes that he did as he was told. There has been some discrepancy in the evidence as to whether it was at Samsadhipore itself that Durlabh left the cart or whether he left it shortly after passing that stage. Bangsi, the head syce, who changed the pony, has all along deposed that the three passengers went on from Samsadhipore, and he did not see the cart stop or Durlabh return. Of course, it is quite possible that this might have happened without his noticing the incident, but it is rather improbable that Annada should have stopped the cart so soon after it had re-started and only then have given Durlabh the weapon which he was to cut the wire. Durlabh's story may be perfectly true, so far as he himself is concerned, and although it is not proved that he was an accomplice in the actual murder, still his evidence is not much better than that of an accomplice. Curiously enough, he does not corroborate Bangsi as to the incident of Annada taking and smoking Halal Kboori's chillum. He does not mention the incident and has not been asked about it by either side.
54. There is great mystery as to how he came into the hands of the Police. According to some of the evidence, the Police searched for him in his village and could not find him until he was actually arrested. According to other evidence for the prosecution, he was all along in his village and ultimately gave himself up to the Police but why--is not at all clear. No sooner had he done so than he made a full confession of having cut the telegraph wire. There was, apparently, no evidence against him at the time and, under the circumstances, I do not consider that the part of his statement, which implicates Annada and Protap Shah, is reliable corroboration of the approver.
55. There is only one other witness to whom I need refer and that is Bangsi. It is proved that, on the 8th October last, an Honorary Magistrate, after taking due precautions, introduced Bangsi into the jailat Rampur Boalia and there the witness picked out Annada from among 31 persons and said that he had recognized him at Samsadhipore on the night of the 3rd of August. It seems a great pity that the Police, who knew on the 4th of August that Bangsi professed his ability to identify one of the passengers, and whose suspicions had, very early in the investigation, pointed to Annada, did not confront him with the witness at once. Had this been done, the result might have been decisive. Annada was lodged in Ramptir Boalia Jail on the 24th of September, and the identification did not take place until the 8th of October. No explanation is forthcoming to account for even this delay. Bangsi is a man of 60 years of age and, therefore, presumably not very keen-sighted and the night in question was a dark one. He had never seen Annada before. He was engaged in changing the pony, and, probably, had little interest or reason to notice the passengers. Although it is not in itself improbable that Annada, a Brahmin, would ask Halal Khoori, a Mahomedan, and a man of inferior social position, to give him his chillum to smoke, it is very unlikely that he would have done so on this occasion if the other evidence is true, namely, that the passengers at every point where they were noticed took precautions to hide their features. But even if this witness is fully believed, it does not corroborate the approver's statement that Annada was actually present at the murder, because the ordinary route by which Annada would go to his home at Madhukhali would be by river or bullock cart after leaving the mail cart at Jhalmalia ferry. It may be that the murder was committed by the informer and Protap, and that Annada himself was not present at the actual scene--in which case he would, of course, be equally guilty. But this is not the case for the prosecution. On the whole I am not prepared to rely on Bangsi's evidence.
56. I think it necessary to add some remarks about the alleged motive because in this case the prosecution can scarcely succeed unless that motive is established. When the original Will was found missing on the 30th of January 1908, suspicion undoubtedly fell on Annada's party, apparently, because it was suspected that one of his pleaders had actually stolen it. What motive Annada could have for stealing the Will at that stage of the case, after judgment had been given against him, it is impossible to imagine. His case was that the signature on that Will did not correspond with numerous signatures, admittedly genuine, of the testator which had been placed on the record. The Court had found the signature to be genuine. The only hope that Annada could have in coming to an appellate Court to upset that finding would be by showing that, on comparison, the signature on the Will differed from the genuine signatures. In the absence of the Will, an appellate Court could not but uphold the judgment on this point. However, even if it be assumed that Annada's party was responsible for the disappearance of the original Will, it is very difficult to understand why he should be so anxious to recover the certified copy which he had filed. It is argued that, rightly or wrongly, ho did believe that it would be to his interest to get back the copy. If so, considering his position and the relations which must have existed between him and the staff of the District Judge, one would have expected that he would have been able to effect his purpose much more easily. If the prosecution story is true, Annada must have been in close touch with the persons responsible for the despatch, of records from that office. The approver has stated positively that on the day of the final consultation, i.e., either on the 27th, 29th or 30th of July, Annada told him and Protap Shell that the document would be despatched on the following Monday evening, that is, on the 3rd of August. It is most extraordinary, if he had this information from the office of the District Judge, that he did not also know what the actual record was, which was to be despatched, and whether or not the copy of the Will was in fact in it. It is also very strange that Annada did not make earlier attempts to secure all the available seats on the dak cart for the evening of the 3rd. He made no attempt to purchase his tickets until about 4 p.m., on that afternoon. If he had been forestalled by a single outside passenger, his whole object, to accomplish which he was prepared to commit a most daring murder on the high road, would have been frustrated.
57. As against Protap the only evidence that really can be said to corroborate the approver is the evidence of Durlabh. For the same reasons that I cannot accept his evidence against Annada I cannot rely on it as against Protap. In my opinion, therefore, both the accused must be acquitted.
58. We do not think it is necessary to comment on all the evidence placed before us in detail. A brutal murder and robbery remain undetected and unpunished, principally, as it seems to us, because the salient features in the case were overlooked, namely, the clue furnished by the evidence of Bangsi on the 4th August, and the significant fact that the only postal packet abstracted was the one containing Codes of the Public Works Department. The learned Sessions Judge, however, bestowed great pains on the trial of the case, and, though his charge to the jury lacks arrangement and method, we recognise the care and ability displayed.
59. The result is, in our opinion, that the prosecution have failed conclusively to prove their case. We, therefore, under Section 307, Clause 3 of the Cr.P.C., acquit the accused, Annada Charn Thakur and Protap Shah and we direct that they be immediately released.