1. In this case the accused man was put on his trial before the learned Sessions Jndge of Murshidabad and a jury of five upon a charge that about midday on 14th April 1928, he committed culpable homicide by killing his wife. The wife’s name was Kiranbala and it would appear that she was a mere girl of some 15 years of age. She had been married to the accused since about 1924.
2. Now the evidence on the part of the prosecution consists first of all of a considerable amount of evidence to the effect that the accused used from time to time to ill-treat his wife. There is a certain amount of evidence but not of a character which can be said to be in any way substantial to the effect that the accused man was carrying on an intrigue with the widow of an uncle who lived next door and that this might have had something to do with the animosity between the husband and the wife. There is some further evidence as to which it is a matter of opinion whether it is substantial or not to the effect that this girl may have been acting imprudently if not carrying on an intrigue with the witness Srikrishna. But the evidence which matters and which may be regarded as the evidence upon which the prosecution sought to bring the charge home to the accused is, in the first place, the evidence of some 4 or 5 witnesses who say that in the middle of the day on the 14th April as they passed near by to the accused’s hut they heard his wife crying out for help saying that she was about to be killed, and one witness at least speaks to words of threat and intention to kill on the part of the accused man. Sometime afterwards it appears that the accused is seen by certain witnesses going on to the top of his kitchen with an instrument what has been called a crowbar and breaking down a part of the wall. When the accused man makes up his mind to call in persons from outside the body of the wife is discovered lying on the floor with certain parts of the earthen wall lying round about her and certain parts lying, on her body, and the story that is given out by the husband is this that he was away from the house in the morning but that when he came back in the afternoon he found this state of affairs, and his. suggestion was that he knew nothing as to what occurred and that it would appear that a part of this wall had fallen down upon the girl and she had met her death while cooking in that room. It would appear further that a few days before the occurrence a fire in the thatch of this house had taken place and it is suggested that the damage done at that time may have accounted for the collapse of this earthen wall.
3. The condition of the body of the girl and the clods make it extremely difficult to suppose that any such accident happened as that the wall collapsed on the top of the girl and killed her. It appears that only a small portion of the wall collapsed at all. In addition to that there is the evidence of witnesses who say that the man was seen breaking down a part of the wall with a crowbar. One clod at least was produced in Court and the learned Judge was satisfied that it showed marks that it had been forced off by a crowbar. If, therefore, the question in this case was–whether or not the accused man has shown that this girl had met her death by the wall falling on the top of her–there would be very little doubt of the finding which is against him.
4. The real question which arises is whether in these circumstances this Court can rely upon the evidence which tends to show that the girl met her death at the hands of the man, that the man was in the hut with her in the middle of the day and was ill-treating her in such a way that she came by her death.
5. As I have said, there is evidence of 4 or 5 witnesses called to say that they heard the screams and called to say that the man himself was heard to shout. One witness indeed says that he stepped up and peeped in and saw what was happening and that the man threatened him with this instrument or crowbar.
6. I confess that on reading the evidence of these witnesses for the first time I rather thought that these witnesses were intending to say that they heard sounds of the man beating his wife or sounds that pointed to this. On rereading their evidence I find that it is not clear that they go so far. They all speak merely to hearing something being cried out or said.
7. The question is one which requires to be carefully examined in the light of the injury report and of medical evidence. The first thing that one sees from the medical evidence is that it would appear to be equally inconsistent with the view that the wall fell down upon the girl and killed her and with the view that she was beaten to death with any instrument. There is one abrasion below the right angle of the lower jaw. There is another about an inch below the right side of the neck of the dimension of a pice. There are some indications that the girl died from asphyxia and so far as can be seen if this girl met her death she probably died from being suffocated, The back of her legs and other portions of her body and a small portion of the throat are described by the expression “skin removed,” but no indication is given of the probable character of the agency by which it was done. The opinion of the doctor is that there was probably an unnatural death and the medical officer who conducted the post-mortem said that all the signs pointed to as-phyxical death.
8. If that were all it would be a somewhat formidable case to leave to the jury against the accused on the basis that the shouts and cries that had been heard at that time were shouts and cries by the man at a time when the man was either strangling her by pressing her throat or otherwise endeavouring to choke her. But most unfortunately and by what appears to be the greatest imprudence no doctor was called before the jury at all. The only thing that was done to satisfy the jury in this case–a case where everything depends upon the medical evidence and upon the jury being able to satisfy themselves as to what the medical facts really were–was that the medical officer Sris Chander Sarkar was called before the Committing Magistrate and his deposition was put in as part of the evidence for the prosecution at the trial. When that comes to be examined one finds that the doctor is recorded to have given the opinion that death might have taken place not less than three days before the date of the post-mortem examination. He does definitely say, taking that sentence, at its ordinary meaning, that in his opinion death could not have been less than three days before the date of the postmortem examination. Whether that is what he said and, if so whether that is what he meant is another matter. But at the time this trial was held before the learned Sessions Judge and a jury the prosecution had no right to stand merely upon that deposition in its recorded form and it seems to me to be unpardonable, carelessness in a case of this character that with a statement utterly inconsistent with the prosecution evidence given as a medical opinion by the doctor who held the post-mortem no endeavour was made either to call the medical officer himself or to give any medical evidence in the hearing of the jury.
9. When one comes to look in detail at the report of the post-mortem one finds that the post-mortem was conducted on the very next day after the alleged occurrence. The girl is said to have been lying dead on the midday of 14th April. The doctor who held the post-mortem on 15th says or appears to say that he thinks that she must have been dead for at least three days. When one examines the injury report one sees that a great many of the organs specified in the usual form are described one after another as “decomposed,” and one would presume that what is meant is that these organs are in such a condition that no useful information can be gathered by inspection and one certainly would think from the post-mortem report that there was ample material for the opinion that the girl must on the 15th have been dead for three days. If that be so, th8n the evidence of the doctor given before the jury was absolutely inconsistent with the witnesses’ story as to what they heard on the 15th and the case is left to the jury as appears from the learned Judge’s heads of charge without any comment being made upon that circumstance; nor does the learned Judge give it a place in his letter of reference. The charge of the learned Judge and the letter of reference are both lucid and admirable and I have nothing to say against them–excepting this that they in no way say that there is any difficulty arising out of the evidence of the doctor.
10. In these circumstances we have to regard the verdict of the jury in a manner which is quite different from the way in which we might feel ourselves obliged to regard a verdict which has no basis or justification in the recorded evidence. The jury were, if this was a point present to their minds, quite right to say that they could not be asked to convict the accused man with evidence in that condition. They were entitled to say to themselves:
Suppose the doctor has been called, suppose he came before us and it had been put to Dr. Sris Chandra Sircar that this girl was alive on 14th April and suppose he had said “Well, in my opinion, from what I saw on the 15th I say that is quite impossible”;
no jury could have convicted upon the evidence in this case. It seems to me that that is exactly the position in which this Court now is upon this reference.
11. It is true that we have power under Section 307, Criminal P.C., read with Section 428, to call further evidence. It would perhaps be possible to have Dr. Sris recalled and the whole matter gone into again. Then the case would come back before this Court after a perfectly proper acquittal by the unanimous verdict of the jury who tried the case. It would come back before this Court on a different state of the evidence and in that case we should have no doubt power to do what we think right. Speaking for myself I am entirely unable to accede to the suggestion that further evidence on this matter should be called.
12. I wish that it could be impressed upon Public Prosecutors and upon the Sessions Judges that in cases–serious cases of murder or of man-slaughter it is unreasonable to expect the jury to convict if a proper exposition and explanation of the medical evidence is not given viva voce by a doctor who can deal with the matter and satisfy the jury. The jury are quite entitled to be fully satisfied. Indeed not until one has gleaned all the facts, one can from the medical report, is one really in a position to say what parts of the other evidence can be relied upon. In my opinion, it may or may not be a mere mistake in expression of opinion or that the doctor was mistaken or was misinterpreted, but it is impossible for us to do anything save to take this solemn opinion as it is. I do not know, as this is not the first time on which I have had occasion to make this criticizm or complaint, whether this will have any effect upon the conduct of cases of this character in the mousses, but the one circumstance which seems to me to make this case worthy of attention is that it is a very plain illustration of the fact that a. jury will sometimes find points which are really against the prosecution but which escape the notice of learned Judges, and of Public Prosecutors.
13. Thinking as I do that in this case the jury were entirely in the right, in my opinion, this reference ought to be rejected and the accused acquitted and if he is in custody he must be released.
14. If he is on bail his bail bond should be discharged.
15. I agree but I desire to-make a few observations as to what has been disclosed at the hearing of this reference.
16. To me it is shocking that what may be a serious miscarriage of justice should occur by reason of what the learned Chief Justice has described, and I entirely concur, as unpardonable carelessness on the part of those charged with the prosecution. Ordinarily it is the practice to call the doctor as a witness in the Sessions Court when the death of a person is involved. That being so I do not understand why it was not followed on this occasion for the Public Prosecutor must have been fully aware of what the doctor had said. Similarly with regard to the Sessions Judge, who could under Section 509(2), Criminal P.C., have required the doctor to be summoned and examined as a witness and I am wholly at a loss to understand why he did not insist upon the doctor being called.
17. We were asked to send the case back to the Sessions Judge to have the doctor further examined or to examine him ourselves. The question as to how long before the post-mortem examination the death had actually occurred is, as regards the doctor, a matter of opinion. The facts upon which the doctor formed his opinion must have been fresher and far more readily present to his mind at the time when he gave his evidence in the Magistrate’s Court than they possibly could be now. If he were to repeat his former opinion time and expense would have been wasted. If, on the other hand, he were to give an opinion more favourable to the prosecution it could not fail to be subjected on behalf of the accused to strong adverse comment, in the circumstances I do not think it would be fair to the doctor to send the case back for or to take further evidence and it is extremely doubtful if it would serve any useful purpose.
18. Finally I desire to make one observation with regard to the post-mortem report. I observe that that it is chiefly confined to facts observed by the doctor but there is, however, a place at the foot where the medical officer is required to record his opinion as to the cause of death. Though my experience of cases of this kind is limited it appears to me that it probably would be useful that he should also be required to record the length of time which in his opinion has elapsed since death took place. This is a matter as to which I apprehend that in every case the medical man who conducts the post-mortem examination should be able to express an opinion, either with or without qualification. It would be preferable that he should be required to record his opinion at the earliest possible moment than that he should be asked to give it at a later stage when he has not the same opportunity to observe the fact upon which he must form his conclusion.