Patna High Court
Kunja Subudhi And Anr. vs Emperor on 16 August, 1928
Equivalent citations: 116IND. CAS.770, AIR 1929 PATNA 275
JUDGMENT Fazl Ali, J.
1. This case has been referred to us by the Sessions Judge of Cuttack under Section 374 of the Code of Criminal Procedure for the confirmation of the sentence of death passed by him on two accused persons namely Kunja Subudhi and Ananda Das whom he has convicted under Section 302 of the Indian Penal Code agreeing with three of the four assessors with whose aid the trial was held. There is also an appeal before us on behalf of the two prisoners who have been condemned to death.
2. The facts of the case are briefly as follows: The deceased Peary Mohan Mahapatra was a barber by caste and lived in village Subarnipur within the jurisdiction of Banki Police Station. He was a man of some substance and his only daughter Labanya had been married to Kunja, one of the accused, about a year before the occurrence, one of the conditions of the marriage being that Kunja would live in the house of his father-in-law Peary and would be given a portion of the latter's property. Peary went to his field as usual in the afternoon of the 19th March, 1928, but he did not return that night. Next morning a boy of the village brought the information that his dead body was lying in the jungle adjoining a mango field which was not very far from one of the fields belonging to the deceased. Thereupon Kunja went and lodged a First Information Report before the Police at Banki in which he suspected Chinta Dalai, Dera Dalai and Madan Dalai on the ground that some time before the occurrence Bera, son of Chinta, had caught hold of Labanya and forcibly put vermillion on her face and since then Peary had been trying to get the Dalais out casted. It was also mentioned by Kunja in his information that Peary was a man of loose character and that he was suspected to have had illicit connection with the wife of one Sauriya Chitrakar.
3. The Police Sub-Inspector proceeded to the village to investigate the case and his statement is that he engaged spies to find out the truth. It is said that Nabina Dehuri, a labourer of the deceased, made certain statements in the course of the investigation which indicated that the two appellants were concerned in the murder of Peary and that subsequently Ananda Das, accused, made a confession before Fakira Panda, the punch of the village, within the hearing of the Sub-Inspector who had concealed himself behind a wall to overhear what Ananda Das was saying to Fakira Panda. Subsequently, both Ananda Das and Kunja confessed their guilt before a Magistrate, Kunja doing so on the 26th March, 1928, and Ananda on the? 9th March, 1928. The story given in these confessions as well as in the statement of Nabina is that four or five days before the occurrence the two accused and Nabina met together in a temple and Kunja persuaded the other two to join him in killing his father-in-law and the three persons took a vow that they would be trusted friends and none of them would divulge anything about the secret compact which had been arrived at between them in the temple. This is said to have happened on or about the 16th March. Peary could not be killed on the night following the conspiracy because Nabina backed out at the last moment. Nothing happened on the 17th or 18th. On the 19th March the deceased went to see his field in the afternoon as usual and he was killed on his way back in a mango tope. It is said that Nabina again did not accompany the two appellants and that the two appellants only were present when the murder was committed. Nabina, however, is said to have been informed by Kunja of the murder two gharis after night fall when Kunja returned from the scene of the murder and left a basket belonging to the deceased with Nabina. Shortly afterwards Kunja went out accompanied by Nabina on the pretext that he was going in search of his father-in-law which was done only to avert the suspicion of the female inmates of the house and to console them. Kunja, however, returned home late at night and informed the females that he could not find any clue of the deceased.
4. The case of the prosecution, therefore, rests on (1) the confession of Ananda Das before Fakira Panda; (2) the confessions made by the two accused before the Magistrate which were subsequently retracted by them before the Committing Magistrate; (3) the statement of Nabina in Court; (4) certain minor circumstances which are said to corroborate the confessions of the two accused.
5. We have anxiously considered the matter and are of opinion that the statement which was made to Fakira Panda (P.W. No. 15) is not admissible in evidence in view of the provisions of Section 24 of the Evidence Act which runs as follows: "A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him". Now, there is no doubt that Fakira Panda was a person in authority because he was on his own statement a village punch and he was actively assisting the Police Officer in the investigation of the crime. It is not disputed by the learned Assistant Government Advocate that for the purposes of this section Fakira Panda would be a person in authority, and if any authority was needed for the proposition it would be found in the cases of Emperor v. Ganesh Chandra Goldar 74 Ind. Cas. 264 : 50 C. 127; A.I.R. 1923 Cal. 458 : 24 Cr. L.J. 760 and Emperor v. Aushi Bibi 33 Ind. Cas. 828 : 20 C.W. N.512 : 23 C.L.J. 477 : 17 Cr. L.J. 188. In the case of Emperor v. Ganesh Chandra Goldar 74 Ind. Cas. 264 : 50 C. 127; A.I.R. 1923 Cal. 458 : 24 Cr. L.J. 760 the accused is said to have confessed his guilt before a collecting punch and an assistant punch, who were taking a prominent part in holding an inquriy into the circumstances of the commission of a murder and he also confessed his guilt before a Magistrate though he subsequently retracted the confession. There was some evidence that the assistant punch had assured the accused that he would be let off if he disclosed everything. On these facts Sanderson, C.J. held (Panton, J. concurring) that the confession made before the punches was inadmissible under the provisions of Section 24 of the Evidence Act and a similar statement made subsequently to the Magistrate and retracted afterwards would be also inadmissible in evidence, unless it could be shown that the impression which was made upon the mind of the accused had been entirely removed therefrom. The same principle will apply in this case if it is clear that the confession before Fakira Panda had been made by Ananda under some inducement or threat of the description referred to in Section 24. The following passage in the statement of Fakira Panda is important:
6. The Sub-Inspector then asked me to see Ananda and try if anything could be got from him. It was after midnight I sent for Ananda and questioned him. I told him the truth had come out from Nabina; all the villagers were being worried about the affair and he had better say what he knew. He wept and said etc.
6. Now the use of language similar to that used by Fakira Panda has been held in a series of cases to be sufficient to exclude the confession. In the case of Reg. v. Navroji Dadabbai 9 B.H.C.R. 358 the prisoner had been told that he had better pay the money than go to jail and that it would be better for him to tell the truth. In R. v. Thomas (1834) 6 C. & P. 353 : 172 E.R. 1273 it was said to the prisoner 'you had better split and not suffer for all'. In R. v. Fennell (1881) 7 Q.B.D. 147 : 50 L.J.M.C. 126 : 44 L.T. 687 : 29 W.R. 742 : 14 Cox, C.C. 607 : 45 J.P. 666 the prisoner was told that it was better for him if he did confess. In R. v. Thompson (1893) 2 Q.B. 12 : 62 L.J.M.C. 93 : 5 Rule 392. 69 L.T. 22 : 41 W.R. 525 : 17 Cox, C.C. 641 : 57 J : P. 312 the prisoner's brother was told that it would be the right thing for, his brother to tell the truth. In all these cases the confessions were held to have been obtained by inducement or threat and, therefore, inadmissible. It is true that the question whether there was any threat or inducement offered or not in a particular case is a question of fact and has to be decided with reference to the circumstances of that case and that it is not safe to make any generalisations merely on the ground that a certain set of words used in a particular case or particular cases have been held to be in the nature of an inducement. But in this particular case we are satisfied that in the conversation which was held between Fakira and Ananda there was a veiled threat as well as inducement; and whatever Ananda said was said by him in consequence of it. We must remember that the accused was called after midnight, which was a most unusual hour. He was told that Nabina had disclosed the truth which meant to convey to Ananda the impression that his position was no longer an easy one. He was also told what the attitude of the villagers was and then followed the remark that he had better say what he knew. Fakira himself says that Ananda wept and then made a confession. This gives an indication as to what affect was produced upon the mind of Ananda and how the so-called confession was made. In my opinion the confession said to have been made before Fakira Panda is wholly inadmissible in evidence, and the evidence of Fakira Panda has very little value in this case.
7. Turning now to the confessions made before the Magistrate we have to remember that they were both retracted afterwards and although in a proper case a Court may act upon retracted confession alone, the rule of prudence and safety is to require generally that such confessions should be corroborated in material particulars by some reliable evidence before an accused person is convicted. In this particular case we have given our most anxious consideration to the question as to how far these confession can be safely acted upon and we have arrived at the conclusion that they are of very little value as far as they relate to the charge of murder against the accused persons. In the first place, as Sanderson, C.J. points out in the case which has been already cited by me, once there is reason to suppose that a confession before a person in authority had been made under some inducement or threat it must be shown that the impression made upon the mind of the accused had been entirely removed therefrom before he made the subsequent confession to the Magistrate. In this case it is certainly a fact in favour of the prosecution that the confession before the Committing Magistrate was made by Ananda several days after his confession to Fakira Panda, and after due warnings. There is one circumstance, however, about both the confessions which appears to us to be somewhat curious and may affect the value of the confessions to a very large extent and it is this, that both the prisoners throw the blame upon each other in their confessions and assign to themselves individually the part of a mere spectator on the occasion of the murder. The following extracts from the two confessions will make the point clear. The passage in Kunja's confession runs thus:
I joined him (deceased) at 4 p. M. When the work in the field was finished we two started there at 6 p. M. Seeing us Ananda called us to the mango tree. He said, 'there are some mangoes here, take some.' My father-in-law went up to him first. Ananda Das had a bamboo lathi in his hand. He gave one blow on the head of my father-in-law with the said lathi. Instantly he give another blow. My father-in-law fell down saying,'Oh my father' Oh my mother.' I was very much frightened then. I went to a field at a short distance and sat down. Ananda Das called me to thai place. I said 'I am frightened' 'do what is necessary.' He went back to that place. I had a gowni a corn measure) with me and I went home with it.
8. Ananda's account, however, about the same incident is as follows:
On the way we came to a mango tree. There he said to me 'I have said to my father-in-law that 'I shall keep mango near his tree. When he returns from the field if he goes by this way we shall take the mango and go together'. Then he said, 'when my father-in-law comes near this tree for mango, then we shall attack him and finish the job' Saying this he picked up some clods, kept them under the mango tree and covered them up with mango leaves. Then he asked to me to sit there quietly. I sat down there quietly. After a while he stood up near the said tree and called out 'father I am waiting (for you) here. Come sharp. We shall take the mango and go away'. He calls his father-in-law as 'father'. A short while after Peary came to the spot and asked, 'where is the mango?' Kunja pointed out the aforesaid clods saying that these were the mangoes and asked him to take them up. Peary sat down there and was about to pick up the mangoes. I had a bamboo lathi with me. As soon as Peary sat down Kunja took the lathi from me and struck him on the head. Peary uttered a slight groan and fell down. Again Kunja struck him another blow on the head. Peary lay senseless. Then Kunja took out a pen knife from his waist and dug out Peary's eyes, cut out the lips, and dragged him to a distance of one padika (10 feet 5 1/4 inch). There he found Peary still breathing slowly. Then he cut off his testicles with knife. Then he ran up to me and said, 'brother come, let both of us drag him a short distance and then leave it and go away.' I refused for I was trembling at that time. So he dragged it slowly, took it to the forest and leaving it there, came away.
9. It is thus clear from these statements that both Kunja and Ananda make each other the actual murderer and each of them assigns to himself the part of a mere spectator and also tries to show that he was shocked and frightened to see the crime committed. This shows either that they were not inclined to disclose the complete truth while making the confession or that they believed that by making such a statement they were not really implicating themselves as accused but were placing themselves more or less in the position of an eye-witness to the crime. A representation like this cannot deceive one who knows the law and who also knows that one who commits the murderous assault is in the eyes of law as guilty as the person who is there to aid and abet such an assault. But we are not sure that such a belief, however induced, would not have considerable effect upon the untrained minds of two ignorant villagers like Kunja and Ananda and both Kunja and Ananda might not be actually led to believe that by making such a statement each of them was really saving himself and implicating the other. If, therefore, the fact that each of the confessing persons is trying to save himself and implicate the other is to be regarded as internal evidence of the confession having been procured under some kind of inducement, it would make the confessions entirely valueless. But we do not want to discard the confessions merely on suspicion or speculation. The fact remains that a confession made by one of the co-accused who does not implicate himself to the same extent as he implicates the other co-accused and who tries to throw the entire blame on the other co-accused is of very little value at least as against the other co-accused. The question, however, arises as to what value it should be held to carry as against the person making the confession. Here again the prosecution has to face certain serious difficulties. The extracts that I have given from the two confessions are the most material portions of the confessions and the charge under Section 302 of the Indian Penal Code turns on the question as to how far the statement made in these passages is to be relied upon. So far as the actual murder is concerned the corroborative evidence adduced by the prosecution is extremely meagre and almost insignificant, while, on the other hand, there are serious contradictions in the two confessions; and the question arises which of the two confessions is to be believed. As the extracts will show the two prisoners gave entirely discrepant accounts as to who invited the deceased to pick up mangoes, who assaulted the deceased, who was carrying a knife which was used on the deceased after the assault, as to whether it was Kunja's lathi or Ananda's which was used, as to who dragged away the dead body after the death of the deceased and generally as to the part played by each of the accused on the scene at the time. These contradictions, however, if they stood by themselves could be explained as being due to a desire on the part of each of the accused to minimise his own part in the crime. But there are still more serious difficulties which cannot be explained so easily and which very largely affect the value of these confessions. According to both these confessions the deceased was assaulted with a lathi only and only two blows were given with the lathi. The evidence of the doctor, however, who performed the post-mortem and who examined the injuries on the person of the deceased is that the fractures on the head were caused by heavy and fairly-edged weapons like kuradhis (axes) and that they could not be caused by sticks or lathis. He also says that the incised wounds were also caused by fairly-edged weapons like kuradhis and could not be caused by lathis. It is true that the prosecution examined another doctor to prove the possibility of the principal injuries having been caused with a blunt weapon but even this doctor was inclined to change his opinion on reference to the inquest report which clearly shows that the wounds were in the nature of serious deep cut wounds. The evidence of the doctor again shows that there were no less than twenty-four injuries on the person of the deceased and a good many of them were ante-mortem injuries. It is also fairly clear from his evidence that both heavy and sharp as well as blunt weapons must have been used in killing the deceased. It is thus certain that the deceased must have been attacked by more than one person; but we are inclined to go further and hold that in all probability he was attacked and assaulted by several persons. This view commends itself to us not merely on the ground of the multiplicity of the injuries on the deceased, but also on the ground that the deceased was himself a strongly-built man of about forty-five years and his assailants must have counted on the possibility of a sudden resistance on his behalf and must have been there in sufficient numbers to completely overpower and kill him. Thus it appears that the confessions in question are seriously contradicted by the medical evidence in the case and the story given in them is opposed to the probabilities which arise from a careful consideration of the evidence. There is another point about the confessions which requires careful consideration and this relates to the time when the murder is said to have taken place. The time mentioned in Kunja's confession is 6 p. M. and it is said that the occurrence took place in a mango grove not far from a field where the deceased was working and at a distance of 55 yards only from a village path. The map shows that there are a number of fields near the place of occurrence and the evidence of P.W. No. 22 Upai Mistri, P.W. No. 5, Kola Sahu, P.W. No. 6 Iswar Sethi clearly shows that there were other persons in the neighbourhood at the time when the occurrence is alleged to have taken place. It is not probable that the accused would kill Peary and then proceed to mutilate his body and drag it to some distance so early in the evening at a place in the neighbourhood of which the prosecution witnesses admit to have been present till two gharis after sunset. Again the statement of Nabina whose house is only at a distance of about 500 yards from the scene of the crime is that he saw the accused Kunja two gharis after nightfall which I am told would be about 8 P.M. As Kunja went to Nabina almost immediately after the occurrence the time of occurrence if Nabina's account is true must be later than 6 P. M. If so, the prosecution has to face another difficulty arising out of the medical evidence in the case, according to which the doctor found half-digested rice in the stomach of the deceased at the time of the post-mortem examination. The evidence of P.W. No. 2, the wife of the deceased is that the deceased had taken his meal about 2 P.M. and if so rice should not have been found half-digested if the occurrence took place about two gharis after night fall. Then again we find that the question about the hour of the occurrence was not sufficiently thrashed out in the Court below, because in going through the Police papers we find that in the report' submitted by the Deputy Superintendent of Police in which he reviewed all the facts of the case it is mentioned that about 6 P.M. the informant (Kunja) came back home without his father-in-law and at "about 8 P.M. the inmates of the house made inquiry about the absence of the deceased." This statement is apparently based upon certain statements made before the Police in the course of the investigation. But no attention seems to have been paid to them in cross-examining the witnesses in Court. The statements are not legitimately before us because there was no cross-examination in the case with reference to those statements and so we cannot take them into consideration in deciding the case; but it is certainly obvious that if Kunja had come back home at about 6 p. M. he could not have been on the scene of the crime at the same time which is the time of the occurrence mentioned in the confession of Kunja. These being the circumstances relating to the confessions we are obliged to hold that assuming that the confessions cannot be wholly excluded we cannot attach any value to them so far as they relate to the commission of the murder; and that the story narrated by the two accused as to the manner and the circumstances in which the murder was committed and as to the part played by themselves is wholly unreliable and untrue.
10. The next piece of evidence relied on by the prosecution is the statement of Nabina. After carefully going through his evidence, I am inclined to hold that he is not wholly a witness of truth. The probabilities seem to be that he was an accomplice and one of the prominent participators in the actual crime. He is a labourer by occupation and is one of the aboriginal inhabitants of the villages. It was much easier for Kunja to tempt him and to employ him for the kind of work which he wanted to be done than to tempt or employ Ananda Das. On his own showing he had taken a vow of comradeship in the temple and was a believer in Maha Prasad. It is difficult to believe that he actually backed out at the last moment in view of his own admissions and subsequent conduct. He says that on the first day he refused to go to work with Peary on purely conscientious grounds although he was incurring the risk of losing the money which had been advanced to him by Peary. It is also strange that although he had disappointed Kunja at the last moment yet Kunja never remonstrated with him but went on confiding to him every little detail about his scheme and it was to his house that Kunja returned with the basket of the deceased after the murder and told him that the murder had been committed. He is again curiously found in the company of Kunja when Kunja left, home on the night of the murder to carry on his sham search of the deceased. It is also strange that he retained the confidence of Ananda too throughout. Ananda was found sitting on Nabina's pinda 3 or 4 days before the murder and told Nabina on the day of the murder that he would strike a blow to Peary that day and even showed his thick lathi to him. The nature of the injuries on the deceased would suggest rather than negative the participation of an aborigine in the crime. He had been a labourer of Peary for one and a half month before his death and there is nothing to show that he was particularly attached to him. His own statement is that he was previously the labourer of Chinta and Bera Delai who were suspected in the First Information Report of this case and who were certainly no friends of the deceased, though Nabina tries to conceal that they were on bad terms with him. On a consideration of all the circumstances of the case I am inclined to hold that Nabina is no better than an accomplice and his evidence is far from trustworthy and cannot be safely used to corroborate the retracted confessions which have been found to be unreliable.
11. The chief corroborative circumstance which has been relied upon by the Sessions Judge in connection with the confession of the accused is that it was Kunja who brought the basket of the deceased from the scene of the murder to the house of Nabina. This fact rests only on the evidence of Nabina and his wife, and in view of what I have already said about Nabina it is not safe to hold it as an established fact on the evidence of these persons only. The fact remains and there is overwhelming evidence to prove it that it was Nabina who took this basket to the house of the deceased and as between the two stories, the story that it was Nabina who brought the basket must be preferred because it rests on undisputed evidence.
12. There remains the question as to the motive for the crime. We must remember in this connection as was observed by Lord Atkinson, that "however strong and convincing the evidence of an adequate motive may be, that evidence can never counteract the harm done by the reception of inadmissible evidence, or the injustice its use may lead to, nor by itself supply the want of all reliable evidence direct or circumstantial, of the commission of the crime with which an accused person may be charged" Vaithinatha Pillai v. Emperor 21 Ind. Cas. 369 : 17 C.W.N. 1110 : 14 M.L.T. 263 : (1913) M.W.N. 806 : 15 Bom. L.R. 910 : 25 M.L.J. 518 : 11 A.L.J. 881 : 18 C.L.J. 365 : 14 Cr. L.J. 577 : 40 I.A. 193 : 36 M. 501 (P.C.) . In this case, however, it cannot be said that the motive assigned by the prosecution is particularly strong. In the case of Ananda the only motive assigned for his joining the conspiracy is that he was promised some money and property after he had killed Peary. The two confessions do not wholly agree as to what exactly was promised to him; but apart from this it is difficult to believe that Ananda Das who was a brahmin by caste and the sevak of a temple would so readily accept the proposal to murder a man with whom he had no personal enmity merely because there was a distant prospect, which might or might not be realised at all, of his getting something in future from Kunja who at the time when he asked Ananda to join him had nothing to give. The statement in Ananda's confession that Kunja promised to arrange an illicit intrigue between Ananda and his own wife is, to say the least highly improbable and at any rate shows that the mercenary motive was by itself not a sufficient motive.
13. Then as regards Kunja it is said that he expected to have his father-in-law's property but he was disappointed to find that another boy had been adopted by Peary; that Peary had found him extravagant and unreliable and was not anxious to give him his share in the property; and that 8 or 10 days before the murder there was a quarrel between Kunja and the deceased. It is in evidence, however, that the boy had been adopted before Kunja married Labanya and that Kunja and Peary were moving about together up to the date of the murder which shows that the quarrel, if any which is said to have taken place 8 or 10 days before the date of the occurrence could not have been of a very serious character. Again it appears from the evidence of P.W. No. 18 that Peary was until the last moment promising to give some property to his daughter Labanya who was Kunja's wife. This is the evidence as to the alleged motive against Kunja and it is remarked even by the learned Sessions Judge that from the nature of the mutilation of the body coupled with the statement in Kunja's confession, he was inclined to suspect that there may have been something more to account for the savage and brutal murder. The learned Judge refers obviously to the suggestion made by the prosecution that Kunja suspected that the deceased had illicit connection with his own daughter; but before p, suggestion of this character can be accepted there must be very strong evidence to support it and it is difficult to accept the suggestion as true when the prosecution witnesses have themselves stated that Labanya's character was good.
14. The learned Sessions Judge seems to attach some importance to the evidence of Kila Sahu (P.W. No. 5) and Iswar Sethi (P.W. No. 6) who stated that they saw the deceased leaving the kandia chanehuni field along with Kunja. We had to examine the Police diaries in connection with the statement of these witnesses and we find that Kila Sahu and several other persons at first stated that they saw neither the deceased nor the complainant in the field. But the Sub-Inspector suspected that they were not telling the truth and so arrested them and then Kila Sahu made the statement which he has made before the Sessions Judge and Iswar's statement was made after Kila had made his statement. These circumstances have not been brought on the record; but in a case involving a capital sentence we felt it our duty to go through the Police diaries carefully, especially because we felt that the case was rather poorly defended before the Sessions Judge and a number of important circumstances had not been brought out on the record. I do not mean to say that the circumstances noted in the diary as to how Kila and Iswar gave their statement conclusively show that the statements made by them must be false but it is obvious that in view of those circumstances it will be unsafe to base any definite conclusion on the statement of these two witnesses.
15. Then it is said that Kunja did not properly search for the accused on the night of the murder. Here again the evidence adduced in Court does not conclusively show that Kunja had necessarily a guilty mind at the time or that he was all along merely pretending to search for the deceased. The evidence adduced in the case at least proves that Kunja did go out for a search, that he went to various places and that he was searching for some time; and prima facie there seems to have been no great risk involved in Kunja coming home after his pretended search and giving out that very night that he had discovered the dead body and its whereabouts. The inference drawn in this case that the search made by Kunja was a mere sham search is, independently of the evidence of Nabina, who, as I have already pointed out, cannot be regarded as a trustworthy witness in this case, a matter of pure speculation and dealing with a case like the present there is always the danger that conjecture or suspicion may take the place of legal proof and one has to guard one's self against this danger.
16. It is conceded by the learned Judge himself that in the present case it would be unsafe to base a conviction upon the retracted confessions alone and that they ought to be corroborated in material particulars before they can be safely acted upon. Now, the circumstances which would have great corroborative value in a case like this would be such circumstances as the presence of blood-stains on the clothes worn by the accused, the recovery of weapons from their possession which might be connected with the crime, their being in possession of the properties which belonged to the deceased and other similar circumstances, In this case, however, we find that the Chemical Examiner did not detect any blood marks on the clothes worn by the accused, that the stick which Kunja is said to have been carrying on the date of the murder is hardly sufficient to account for the injuries on the deceased, that no weapons were recovered from either of the accused which would connect them with having participated in the murder itself and that the ornaments which the deceased is said to have been wearing still remain untraced.
17. I have referred in more than one instance to the circumstances noted in the Police diaries in this case. As I have already explained we had to go through the Police diaries, because we found that the prisoners had not been adequately defended in the case and we wanted to satisfy ourselves if all the materials which should be before the Court for the proper decision of the case had been brought on the record. We find that a number of important circumstances were not before the Court in the shape of evidence or, at any rate, they were not fully brought out on the record. We find, for instance, that the Sub-Inspector notes in his diaries that he found blood-stains on a crowbar and a knife recovered from the house of the Delais who were suspected in this case in the First Information and this fact is important, because a crowbar is more likely to have caused the injuries on the person of the deceased than the lathis produced in Court. We also find that the Sub-Inspector noted several important circumstances raising grave suspicion against the three Delais. Again the statements made to the Police by the three female relations of the deceased who have been examined in the case disclose enmity of a bitter character between the deceased and the three Delais and also relate to several incidents which are said to have taken place before the date of the murder but which have not been referred to in Court. There is also the statement made by these witnesses as to the time when Kunja left with the deceased and returned home on the 19th March, 1928. Again there are statements made by some of the witnesses as to the time when the cake was actually distributed in the temple and when Ananda actually joined the feast. There are also certain statements made by wife and the mother of the deceased before the Police which would go to show that the relations between them and Kunja could not be of a very happy character. We cannot legally act on facts which are to be found in the diary but which have not been brought on the record, and we have tried to exclude them from our consideration as far as possible in deciding the present case. It may be that if an attempt had been made to bring out these points in the evidence they might have been explained away or some of the statements might have been found to be untrue; or it may be that these circumstances would have thrown a good deal of light upon the whole case and the circumstances noted in the diary might have been admitted by the witnesses to be true. As the matter, however, stands we only feel that a good many circumstances which might have been usefully brought on the record are not there. I do not wish to suggest anything which might complicate the task of a Public Prosecutor which is not always an easy one; but as has been pointed out by Sir Lawrence Jenkins, C.J. in the case of Ram Ranjan Roy v. Emperor 27 Ind. Cas. 554 : 42 C. 422 : 19 C.W.N. 28 : 16 Cr. L.J. 170 "the purpose of a criminal trial is not to support at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused; and the duty of a Public Prosecutor is to represent not the Police but the Grown, and this duty should be discharged fairly and fearlessly, and with a full sense of the responsibility attaching to his position." It was also pointed out by that eminent Judge that in a capital case it is the duty of the Crown to place before the Court all materials irrespective of the question as to whether they help the accused or go against him, and it has been rightly observed that the rule is not merely a technical one but founded on common sense and humanity.
18. There is one more circumstance to which I should like to refer in connection with this case. In my opinion it was unfortunate that the charge under Section 120(b) was withdrawn in this case. It is true that in certain reported cases the charge of conspiracy has been found to be redundant after the crime had been committed; but the present case is not a case of that description. As I have already pointed out, it is difficult to hold that the two confessions contain a true account of the circumstances and the manner in which the murder was committed and although the accused admit their bare presence on the scene of the murder there is no circumstance of any value to corroborate their presence on the scene of the murder, whereas, on the other hand, there are circumstances which raise a doubt that they may not have been actually present at all. But so far as the charge of conspiracy itself is concerned, the confessions are not open to any serious attack. Here so far as this conspiracy is concerned we find that each of the accused implicates himself to the same extent as he implicates the other accused. The story given by the accused on this point is fully corroborated by the evidence of Nabina who also implicates himself equally with the two accused in the matter. There is also the evidence of Abhiram Das (P.W. No. 19) who says that he found Kunja, Ananda and Nabina in the temple talking together at about 7. P.M. on the day on which the conspiracy is said to have been formed. In my opinion it was premature in the case to withdraw the charge of conspiracy before there was time to judge what value could be properly attached to the confessions and which part of it was liable to be rejected and which part of it had been sufficiently corroborated. I mention this because, in my opinion, the rule of caution is that it is better to have too many charges than to have too few and once a charge has been framed it should not be dropped until the conclusion of the trial unless on the face of it is wholly inappropriate or the trial is open to attack on the ground of misjoinder or multifariousness of charges. I shall, however, be doing a great injustice to the Sessions Judge if I did not mention that the learned Judge has taken great pains and care to try this case and has written a remarkably clear and elaborate judgment and that we differ from him only because we have taken a different view based mainly on legal grounds as to the admissibility and value to be attached to the two confessions and the statements of Fakira and Nabina.
19. We have given our anxious consideration to the case. We feel that though the circumstances raise grave suspicion against the two accused persons the law must be strictly followed and the evidence which is inadmissible must be rejected and wholly excluded from our consideration in deciding the case. We hold that the evidence is insufficient to convict the accused on the charge of murder and we would, therefore, discharge the reference, acquit the two accused persons and, setting aside their conviction and sentence, direct that they be set at liberty.
Terrell, C. J.
20. I agree.