1. We have come to the conclusions that the’ result of this trial cannot stand and, as is usual in such cases where we are going to order a man to be retried, we obstain from saying anything that could lead to the possibility of gaps in the prosecution case being filled up in the interval. But there are two reasons which I am going to give for upsetting this judgment which are not open to that danger at all. The learned Judge has rejected some evidence about three objects an umbrella, a stick and a bundle which were said to have been pointed out by the accused as being in the well where the body of the dead man had been found. The learned Judge might according to his discretion have accepted or rejected the story that the accused stated that the things were in the well and that it was owing to that statement that they were found there. What he has done is to dismiss the whole evidence out of the case on the ground that the umbrella and the stick which are probably very common place objects were not identified as being more than like similar objects belonging to and carried by the deceased.
2. Then another matter in which he has entirely misdirected himself is by using a decision of Spencer and Wallace, JJ., that in Sogiamuthu Padayachi v. Emperor A.I.R. 1926 Mad. 638. There the only evidence against a man charged with murder was certain objects-jewels, I think found in the possession of the accused. That was the only evidence and very rightly the learned Judges said that in that state of affairs it must be proved up to the hilt that the things belonged to the deceased, that he was wearing them almost immediately before he disappeared and that the possession of them by the accused must be quite incompatible with innocence. That is no doubt perfectly right but that doctrine must not be applied to the total exclusion of any subject when it is not in isolation but is called in as supplementary to the rest of the evidence in the case and without discussing in any detail its weight. It is obvious that there is a ‘considerable body of evidence against this accused in this case of which this evidence would be properly admissible as being corroborative. Then there is another thing the learned Judge did a thing which I still less understand. Evidence was given up of a witness, P.W. 10 about an alleged confession made to him by the accused. The last thing I want to do is to discuss the weight or lack of weight to that evidence; but the learned Judge did not reject it because he did not disbelieve it but he entirely went out of his way to invent a theory that the accused made the confession under the belief that he would gain some advantage by making it, a thing which was never suggested by the defence. No question was put about it and the only foundation for it is that P.W. 10’s mother had let some land on lease to the accused and on that he applies the well-known doctrine that confessions extorted by the promise of reward or by fear are invalid to circumstances which are totally different. For these reasons we think that the acquittal must be set aside and the accused must be rearrested and tried by the Sessions Judge of North Malabar.
3. I agree.