George Claus Rankin, C.J.
1. In this case the two accused persons named Khuday Gazi and Abdul Hadi Sardar were put upon their trial before the Additional Sessions Judge of Khulna with a Jury of seven persons on a charge of murder of one Punti Bibi. It appears that both the accused persona are uriyas, the second accused having become a Muhammadan. It appears that Punti Bibi was a woman who had been married by the first accused Khuday Gazi in nicca form after the death of her first husband. The first husband had left a house and some other property and the occurrence which is alleged to have taken place on the 25th February, 1928, in the middle of the night of Saturday and Sunday took place in the house of the woman.
2. The case for the prosecution is that these two accused together with the two witnesses Fatik Sardar and Katar Shaikh were smoking gunja in Punti Bibi’s house that they were smoking and singing songs and that Panti Bibi was in another part of the house and did not take any share in these proceedings. Finally she went to sleep in her part of the house with a small child of six years old and the story is that after these men had sung their songs and smoked their gunja for sometime the second accused told these two witnesses, namely, Fatik and Katar that Punti Bibi was to be murdered; and that a certain conversation took place in the course of which he threatened these people to keep quiet otherwise he would murder them. That then the two accused entered the room and Abdul Hadi the second accused pressed the woman’s throat and throttled her to death while Khuday Gazi, the husband of the woman held her arms and in this way she was strangled and that these two eye-witnesses ran away immediately after seeing this. There can be no doubt that, the woman came by her death in that place on that night.
3. The question is whether the story of these two eye-witnesses is to be believed by itself and whether there is sufficient corroboration either in the conduct of the accused or otherwise to entitle us to say that the verdict of the Jury is unreasonable. It is quite true that the Jury were very nearly divided in their opinions four being in favour of the verdict, of not guilty and three in favour of the verdict of guilty. There can be no doubt that the story told by these eye-witnesses is very improbable in itself. If the four people were smoking gunja and singing songs then it does not seem probable that one of those people should suddenly say that Punti Bibi should be killed, but one cannot criticise this evidence very much because it appears to be a story of what took place when it may very well be that they were still smoking gunja or at any rate were subject to its effects. The story told by these witnesses as to what they had seen does not sound very convincing and it seems a highly improbable story that the husband and the other men should go into the room where Punti Bibi was sleeping in the presence of these two eye-witnesses and should be so easily and successfully able to strangle this woman to death, the small child being in the same room at the time. This is a story which has all the elements which call for a critical investigation.
4. Now, what appears to have happened is that very early in the next morning, the husband and the eye-witnesses, Fatik, were making arrangements to dig a grave and it is said that corroboration of the prosecution story is to be found in the conduct of the husband in getting the grave dug quickly and also in the circumstance that he gave different accounts to different people one of which tended to show that the woman died of snake bite and the other tended to show that she died of cholera. When we examine the evidence of the witnesses we find that it is quite true that the Matbar of the village stopped the immediate burial of the woman’s dead body until the Police were informed. We find that before mid-day Khuday the first accused himself goes to the thana and lodges the First Information. His story is that after dusk he broke his fast (it was a Roja day) at the house of Punti Bibi, that two witnesses of the village were present then and the witness Fatik was also present, that he went from Punti Bibi’s house to his own and took his meal and slept there with his other wife and his children and that before dawn he went to Pnnti Bibi’a house and noticed the door open and found her lying on her back. He says he found some stools both on the bed and on the blanket. He says froth was seen both in her nostrils and in her mouth. He did not remove the blanket that was on her body so he could not say if there were any marks of violence or wounds on her person. He further says that he saw her stout and strong last evening. He says he knows nothing more. These two houses are not so near each other that it is impossible to suppose that if something had happened to this woman in her house, the people in the house of the first accused would know anything about it. We have, therefore, to consider in these circumstances whether there is any corroboration of the story of these eye-witnesses.
5. Now, on the question of the cause of the death and the circumstances, everything in this case depends upon the evidence of the Doctor. The Doctor was called before the Committing Magistrate and gave his evidence. But for some reasons which I profess I do not understand in the least, the prosecution did not think it necessary that the Doctor should attend before the Jury to give his evidence so that the Jury might ask him questions and get the matter explained to their satisfaction. The idea that it is satisfactory to read the evidence of the Doctor taken before the Committing Magistrate and not to call the Doctor, not to put him in the witness-box and get him to explain to the Jury any difficulty which the Jury might have in appreciating what he said, is I think, absurd. In this case, it was certainly worth while for the prosecution to have called the Doctor to give his evidence before the Jury. I can see no reason for expecting any Jury to take an adverse view of the conduct of a party in a murder case of this nature if the evidence is not properly laid before them. The Doctor had on the 27th February made the post mortem examination. He gives a good deal of information and says that the mouth of the deceased was tightly closed, the tongue was bitten between the teeth and her eyes were closed and so forth. Then he describes a series of abrasions on the neck, on the back and throat and on the left arm and breast and so forth. Then comes the statement which is wholly unexplained by anything in the evidence that a ligature was tied round the neck between the chin and larynx. Not a word is found in the evidence of the eye-witnesses or in the other evidence as to whether this was part of the cause of the death, i.e., strangulation by ligature. This account was read to the Jury and they were left to form their own opinions. It does not appear that the accused persons were defended before the Committing Magistrate. We notice that the deposition was taken in the presence of the accused who had no opportunity of cross-examining the witnesses. It seems to me that there was slackness in the conduct of the case in that the case should not have been tried without the Doctor being called. Now it is suggested that on the face of the Doctor’s evidence it corresponds with the story told by the eye-witnesses. I find it very difficult indeed to satisfy myself that there are not in the Medical evidence matters which require considerable explanation before it can be said that the Medical evidence corresponds with the story told by these eye-witnesses The learned Judge thought that it was very suspicious that the accused Khuday said that he came and saw his wife’s the blanket so as to examine whether or not there were any marks of injury on her person. I am not at all certain that it is a good point. It may or may not be probable that in an ordinary case the woman’s husband would have done so. In the case of this particular accused who is probably a low type of gunja smoker it is very difficult to guess why he thought that he should not then proceed to investigate the matter. But it is very difficult to say that the fact shows that he has taken any part in causing her death. Then again it is said that it was given out in the morning that the woman died of snake-bite. As to that one can only say that there are features in the injuries which maybe taken as the result of snake bite. The circumstances that it was first given out that the death was due to snake-bite does not prove anything against the accused. It is also said that her death was perhaps due to cholera because there was a story of vomited matter found in the house. There is evidence to show that there was some vomited matter in the house. It does not seem to me that that was corroboration. which would induce the Jury to accept the evidence of the eye-witnesses upon whose credibility the prosecution case depends. I do not propose to say more about these eye-witnesses except this that it is very important to ask ourselves when they first told the story which they are telling now. Take the case of the witness Fatik. He says that the next morning although the Jamadar came he did not tell anything to anybody about having seen this woman being strangled to death by her husband and the co-accused. According to him it was not until the Daroga came that he disclosed his evidence at all. Ha was there with a lot of people on the Sunday morning and they were all hanging about that house all day long. It was not until the next day when the Daroga came that he for the first time mentioned it to him. In all these circumstances we have to consider whether this is a case in which the function of this Court is to substitute our own opinion for that of the majority of the Jury. Before we can do so we must be able to say that in the legal sense of the expression, which is sometimes misunderstood, the Jury’s verdict is against the weight of the evidence, that is to say, it is not such a verdict as reasonable men properly instructed could have arrived at. I am entirely unable to say that in this case. It seems to me that the prosecution case has failed largely owing to its own fault, because they did not produce evidence in such manner as would oblige the Jury–who after all entrusted with the life and liberty of the accused to find the accused guilty.
6. In these circumstances I think the proper course is to reject this reference to enter a judgment of acquittal in respect of both the accused and to direct that they be discharged from custody and if not in custody, that their bail bonds be discharged.
7. I agree.