1. This is a reference by the learned Sessions Judge of Faridpur under Section 307 of the Criminal Procedure Code.
2. The case involved a charge of murder, and a conspiracy to murder, against three persons Abinash Bose, Abinash Sarkar and Kali Charan Barai. They were charged with having murdered one Abdul Aziz Khan.
3. There is no doubt that a brutal murder way committed and that the decapitated body of Abdul Aziz was found on a piece of land overgrown more or less with jungle, called Roybagan, near the village Jhowkhola and that his head was found in another part of Roybagan.
4. The case for the prosecution, shortly stated, was that Abdul Aziz and two of his relations who were Kabulis lived together carrying on a joint business in cloth. Abdul Aziz was an illiterate man: and, one Nerode used to act as a sort of clerk for him writing out his khatas making out his accounts, and he used to go with Aziz to collect the amounts due to him. After the collections had been made, Aziz was in the habit of going to Calcutta for the purpose of buying cloth for the business. It was alleged that on the 31st of December the three accused persons and Nerode were together at the house Abinash Sarkar, Abinash Bose enquired of Nerode whether Aziz had made his collections and whether he would shortly go to Calcutta to buy cloth: and, when Nerode informed them that most of the collections had been made and that he, Aziz, would shortly go to Calcutta, one of the accused, namely, Abinash Sarkar asked if they could not murder one of the Kabulis, as they had large sums of money and stated that if they could kill one of them, they would get a considerable sum of money.
5. In my opinion there is considerable improbability about such a story.
6. One of the accused, Kali Charan, had come to the village some 14 or 15 days before this. Nerode was closely connected with the deceased man as I have already said, it seems to be an extraordinary thing that Abinash Sarkar should make such a proposition as that, to which I have referred, to a man like Kali Charan, who had come to the village only 14 or 15 days before, and to a young man like Nerode upon whose co-operation, as far as I know, Abinash Sarkar at that time had no ground for relying. The alleged proposition seems to have been made as if it were almost a matter of ordinary occurrence, and, the murder, it was alleged was in fact carried out the next day at Roy-bagan
7. There are some circumstances with regard to the actual murder which strike me as being improbable and difficult to accept. Nerode said that when the deceased man was sitting down, taking a drink from a cocoanut, a dao was handed to him by one of the others, who instructed him to strike Aziz on the head and he was told that if he did not do so, the others, i.e., the accused, would murder him.
8. It seems to me a curious thing that the actual striking of the man should have been entrusted to Nerode, who was a young man and who had shown himself by no means anxious to have anything to do with the murder. However, according to his evidence he did strike a blow which was ineffective, but according to his evidence, it was not this blow which killed the deceased man, but it was the acts of two of the accused which finally effected the murder.
9. The case rested to a large extent upon the evidence of Nerode Bose, who became an informer. It is quite true that in some respects there was evidence which materially corroborated the story of Nerode; as for instance, that the deceased man, Nerode and Kali Charan went together into the Roybagan and that the murder must have been committed shortly afterwards.
10. On the other hand, there are circumstances which the jury would be entitled to take into consideration, and which might affect their minds when considering how and by whom the murder was committed, as for instance, the fact that the witnesses, who are supposed to have first discovered the body, did not take the course, which they would naturally do under such circumstances, that is to say, communicate at once with the chowkidar, but went away and said nothing about it until the enquiry made by the police.
11. The case was tried by a jury of seven, and the verdict of the jury was unanimous one of not guilty. The jury when asked by the learned Judge for their reasons, said The evidence of the approver is not sufficiently convincing and his evidence is not corroborated by independent witnesses. The medical evidence does not tally with the version given by Nerode. Nerode tried to save himself it is his evidence.
12. In my judgment, although it is impossible to say that the case for the prosecution was not a serious one against the accused persons, as has been pointed out by the learned Counsel appearing for the Crown, still I am not prepared to say that the verdict of the Jury, in view of the evidence, was a perverse one or was such that this Court ought to interfere.
13. For these reasons, in my judgment, the accused should be acquitted.
14. Before parting with the case I think it is necessary to refer once more to the way in which maps in criminal cases are prepared.
15. I am of opinion that the person who makes the map ought not to put upon it anything more than what he sees himself. Particulars derived from witnesses examined on the spot should not be noted on the face of the map, but on a separate sheet of paper annexed to the map as an index thereto, the spots being marked as A, B, C, D, etc.
16. If this course is not adopted the map, although it may be prepared perfectly bona fide, may turn out to be misleading. For instance, in this case, my learned brother and I on looking at the map obtained a wrong impression as to certain parts of the case. We were fortunate enough to have the assistance of the learned Counsel for the Crown, who was familiar with all the evidence and who was able to remove that impression. I mention this because it goes to show that if the Court, sitting on appeal, may receive a wrong impression from what appears upon the map, the jury may similarly be misled.
17. In this case, the Sub-Inspector, when he was investigating the case and examining the scene of the murder, found certain things: In one place he found blood upon the ground; in another he found a piece of cloth and hair; in another place he found leaves spattered with blood; in another place a brick spattered with blood. All these matters he could have legitimately marked on the map. But he did not mark any of them on the map, although he saw them himself. On the other hand he did mark on the map that which he himself did not see; for instance, he marked on the map the places 'where the first blow was struck,' 'where the second blow was struck' and 'where the third blow was struck.'
18. He was not present when the blows were struck. The question whether any of those blows were struck and if so, at what place or places they were struck, would depend upon the evidence which would be given before the Court, and which might or might not be accepted by the jury.
19. The learned Counsel, who appeared for Abinash Bose, informed us that in consequence of the action which has been taken by this Court, maps which are prepared for the Criminal Sessions Court in Calcutta are now made in accordance with the directions of the Court and it is to be hoped that the maps to be prepared in future for use in the District Courts will be prepared on the above mentioned principle.
20. In this connection attention may be drawn to the Amendment of Rule 173 of the Police Regulations Bengal, Part V, which was made by the Government of Bengal in 1920, in consequence of a representation which was made by this Court. That representation contained a statement that in the opinion of the Judges it would be better if the particulars derived from witnesses examined by police officers on the spot, which are now put on the face of a map, were put on a separate sheet of paper annexed to the map as an index thereto, the spots being marked on the map as A, B, C, D, etc. But particulars such as pointed out by witness 'A' as the place where the fight began, or where the man fell when struck should not appear on the map itself.
21. We direct that the accused be acquitted and be released from custody.
22. I agree.