1. The accused Kangal Mali, a boatman, is charged with themurder, on the evening of the 13th December 1904, of One Mahabir who had left aplace named Kalachera on the day previous by boat for Sealtek Bazar on theBarak river. The majority of the jury have returned a verdict of not guilty.One juryman, however, and the Sessions Judge axe of opinion that the accused isguilty of the offence with which he has been charged.

2. The Sessions Judge has, therefore, referred the case tothis Court.

3. The facts as to which there is practically no doubt arethese. The deceased Mahabir, a trader at Kalachera, had in his employ aboatman, named Labhan. The latter fell ill and sent as his substitute hisbrother, the accused, who is a young man of about 25 years of age. The deceasedwas both an older man and, according to the evidence given by hisbrother-in-law, a strong, stout man, a man of greater strength than the accused.Mahabir intended to go to Sealtek Bazar to buy goods for his shop. He leftKalachera with the accused, no one else being in their company, on theafternoon or evening of Monday the 12th of December 1904. The boat in whichthey went was a 35-maund boat, about 18 or 19 cubits long and about 4 cubitswide. It was covered with a bamboo roof for its whole length except for about 21/2 cubits in the bow and in the stern. The roof was about 2 1/2 cubits highand the evidence is that a man could not stand up in the boat under its roof.The deceased took with him some cooking utensils, some other articles and Rs.100 in a bag and a cloth-belt which he were and in which, to use the languageof his widow who has given evidence, there was a sum of less than Rs. 80."The boat moored at Kuchila Garden at 11 or 12 oclock at night and the accusedand the deceased passed the night of the 12th of December apparently alonetogether on the river. On Tuesday morning the 13th of December, the deceasedbought some parched rice from one Siv Gopal Singh at Kuchila. So far as theevidence for the prosecution goes, this is the last place and the last time atwhich the deceased was seen alive. From this time until the afternoon of the14th December the facts which we now state rest upon the statements of theaccused. He says that at 10 or 11 oclock he and the deceased passed theMatijuri Ghat, and the deceased told the Ghat Babu (who has not been called togive evidence) that he was taking the boat empty to Sealtek for goods. At 12 oclockthe deceased and the accused passed Bandukmara, and then they cooked and aterice and reached Sadar garden at about 4 oclock. There, it is said, threepersons of the names of Noyan Mali, Narayan Mali and Sibram Mali, who weregoing in a boat, were met. They asked the deceased where he was going and wereinformed that he was going to Sealtek Bazar. The accuseds statement then runsas follows :--"Thereupon they said, let both our boats proceed together.Noyan and Sibram came on our boat, smoked tobacco and went away. Then Narayancame and smoked tobacco. At 7 or 8 in the evening those three men came and toldme to be an accomplice of theirs. I declined. I said, take his money but donot take his life. I made a sign to Mahabir by a wink. Mahabir did notunderstand it. Thereupon Narayan caught bold of me, and the other two, Sibramand Noyan, killed Mahabir, with what I cannot say." In the statement madeby the accused before the Magistrate, on the 29th December 1904, he says thathe was threatened by the dacoits, who told him to inform the deceaseds widowthat a dacoity occurred in this way otherwise they would go one night and takehis life. He says in his statement before the Sessions Judge that while he washeld by Narayan he, on the excuse that he wanted to make water, went to theside of the boat. Narayan held him by the arm, but he jumped into the water. Hethen says that he swam to the bank of the river and raised a hue and cry. Hethen went to the village and asked the inmates of the first house for help, butthey drove him away as a mad man. He further says that he walked through thepublic road to Rup Charans house and some one gave him a mat and he slept onit. This was on the night of the 13th December. The next day he proceeded onhis journey home and reached Hailakandi in the afternoon of the 14th December(Wednesday), and there he took a pice from a relation of his, Ratan Mali, whohas deposed that he saw the accused. He asked for this pice to enable him tocross the Matijuri ghat. Ratan Mali gave the accused a pice as requested. Afterthat the accused states that his brothers friend, Rasa Mali, gave him a fishfor his (the accuseds) brothers wife, that he went home by the Matijuri roadand reached his brothers house at a late hour of the night, that he wished tolodge an information with the Police, but he was unable to do so as he had nopice with him. As it was apparently very late at night, the accused took hisfood and went to sleep immediately after his return home.

4. His brother Labhan and the latters wife have been calledto speak to what took place on the accuseds arrival and on the following day.Admittedly, on the morning of the 15th December, Thursday, the accused gave outthat there had been a dacoity although, it is said, that he did not mention thenames of the dacoits-until, according to the evidence of the Police, sometimebetween the 22nd and the 24th December. On the evening of the 15th (Thursday),the accused was taken into custody by the Police on suspicion and thereafter beremained in such custody. On the 16th his house was searched, but none of themissing properties were discovered. A search was then made for the boat and forMahabir and both were found on Sunday the 18th of December. There were marks ofblood inside but not outside the boat. The inside of the bamboo roof and themat in the boat were found splashed with blood. The things inside the boat werein such disorder as if, as was stated by the deceaseds brother-in-law, astruggle had taken place in the boat. A certain number of articles were found,including the deceaseds cloth-belt in which were Rs. 75-8, a sum in allprobability representing the whole or nearly the whole amount taken by theaccused in that belt. About a quarter of a mile from the boat the dead body ofMahabir was found floating in the water. It bore a number of wounds. There werefour cuts through the skull, two through the bone on the right side of thechest, two through the bone on the right shoulder, one on the surface of theright wrist and another on the fleshy part of the left forearm. The frontalbone, the right parietal and the occipital were cut through. The second andthird ribs were cut through and the scapula was also cut through. These werethe wounds which were discovered by the Hospital Assistant who has givenevidence. But in addition to these, the brother-in-law of the deceased statedthat he found that the fingers of the left hand of the deceased had been cutoff. The medical witness states that in his opinion the wounds which he spokeof were inflicted with some sharp heavy instrument like a dao.

5. On the 29th of December the accused made to theMagistrate a statement implicating three persons namely, Narayan, Sibram andNoyan, as the authors of the crime, and which statement is substantially thesame as that made by him subsequently to the Sessions Judge. There is no doubtupon these facts that Mahabir was murdered, and in all probability the motivefor such a crime was robbery as, amongst other things, the bag which he carriedwith him containing the Rs. 100 had disappeared. The real question, however, tobe determined is, who committed the crime There is no direct evidence on thispoint, the evidence being entirely of a circumstantial character. There is noquestion that the accused and the deceased were together and were apparentlylast seen together. They, however, as was stated, admittedly passed the nightof the 12th December together alone, and the crime did not take place until thefollowing day. It is upon the fact of the accused last being seen with thedeceased and upon the subsequent conduct of, and statements made by, theaccused, to which we will refer, that the Sessions Judge is of opinion that theaccused should be found guilty.

6. The prosecution evidence is of three kinds. In the firstplace it is said that no mention was made by the accused, on the 14th December,of any dacoity having occurred to the witnesses Ratan Mali, Abbas Ali, his (theaccuseds) brother Labhan and the latters wife Maya. Further, if we are tobelieve the evidence of Abbas Ali, the accused gave a false account of himself,stating that he had come from Badarpur, whether he had gone carrying the clothsof a bairagi whose name he said was Padma Lochan. Though it was late in theevening when Ratan and Abbas are said to have been met by the accused and thenthe accused arrived home, and though his not giving out until the next morningthat a dacoity had been committed makes the matter a delay of a few hours only,still this evidence, if true, does raise a suspicion against the accused asalso (allowing for any fear caused by the alleged threat of dacoits) the fact,if true, that the names of the dacoits were not given until some days later.

7. Nextly, it is said that certain previous statements madeby the accused are inconsistent with the story which he told the Magistrate andthe Sessions Judge. These statements were made both to the Police and to thirdparties. In so far as the statements made to the Police are concerned, it hasbeen contended that they are inadmissible in evidence. The law, however, doesnot say that all statements made to the Police are inadmissible, but itexcludes only confessions made to them there being a distinction between mereadmissions and confessions which are statements either directly admitting theguilt of the accused or statements which suggest the inference that hecommitted the crime with which he is charged. Further, the general rule issubject to that which admits statements leading to discovery, whether suchstatements amount to a confession or not. Applying these principles before us,we find that they divide themselves into two classes, first, there is theevidence of statements made by the accused to the Police pointing out the placewhere the alleged dacoity was committed, the place where after the dacoity heconcealed himself in the paddy field, and also the houses where, he said, hewent for assistance. As regards these statements, whether they be regarded asinformation leading to discovery or as statements made by the accused as partof his defence, it does not appear to us that any objection can successfully betaken. Then there are statements which were made by the accused as to what,according to his case, had actually happened,--statements exculpating himselfand put forward by way of his defence. These statements also are admissiblenotwithstanding that by other evidence it may be shown that such statements areinconsistent with truth. In fact a useful test as to admissibility ofstatements made to the Police is to ascertain the purpose to which they are putby the prosecution. If the prosecution rely on the statements of the accused tothe Police as being true then they may, and probably in many cases will, befound to amount to confessions. If, on the other hand, as in the case of thestatements to which we have just referred, the statements of the accused arerelied on, not because of their truth, hut because of their falsity, they areadmissible. They are in such cases brought forward to show what the defence ofthe accused is, and that, as the defence is untrue, this is a circumstancetending to prove the guilt of the accused.

8. We are, however, inclined to think that there is onestatement which was made to the Police and which should have been excluded.That is a statement which the accused is alleged to have made with reference tothe mark on his dhoti which is said to be the mark of blood. The PoliceInspector, Ambica Charan Sen, says: "My attention was drawn to the accusedscloth by a constable. On my asking accused what the marks were, he first saidthey were tobacco stains, then he said they were stains of betel nut and thenhe said it was blood." We are inclined to think that this statement is,under the circumstances, (if it was in fact made) of an incriminatingcharacter, from which an inference might, though not necessarily, be drawn asto the accuseds guilt. No doubt the statement is not absolutely inconsistentwith the accuseds innocence, for it may be that his dhoti was stained (if itwas in fact stained) in an attack made by others. Still the fact that theattack was probably made under the bamboo roof at some distance from theaccused who, according to his account, must have been standing in the open partof the boat, and the prevaricating character of the alleged statements, renderit of at least doubtful admissibility, if not, as we are disposed to think,inadmissible. Further, for the reasons which we shall state, we are not able toaccept the evidence that there was any mark of blood on the dhoti. On thesegrounds, therefore, we think that the statement should have been excluded as weexclude it from our consideration. The discrepancies which are alleged betweenthese previous statements of the accused and the statements made to theMagistrate and the Sessions Judge are these. It is said that the case of theaccused as originally made was that the boat was moored, whereas in hisstatements before the Magistrate and the Sessions Judge he says that the boatwas at the time of the attack proceeding down the river. Then he is said tohave previously stated that the dacoits came from the east by land, whereas hiscase in the statements before the Court is that they were in a boat and hadcome from their boat into his. Then there is a discrepancy as to the time ofthe alleged dacoity which in the previous statement is alleged to be 3 A.M. inthe morning of the 14th December instead of about 7 or 8 oclock of the 13thDecember as alleged in his statement before the Court. Nextly, there are somediscrepancies also as to the number of the dacoits. The accused stated in Courtthat they were three in number, but in his previous statements on the pointmention is made of a large number of men. An attempt has lastly been made toshow that these statements, which the accused is said to have made, were infact false. It has been shown that the place, said to have been pointed out bythe accused as that where his boat was, is a place at which the bank is steepand high and where the current is strong, and, therefore, a position at whichthe boat could not have been moored. It is said that the dhan field, which theaccused pointed out as the place in which he concealed himself, showed no signsof damage whatever, and the persons, to whom he is reported to have said thathe went for assistance on the night of the dacoity, have been called to showthat he did not come to them. The evidence, however, of these persons cannot,in our opinion, be relied upon to establish this point. The first witness, RupCharan Mali, states that he does not know the accused which is also the case ofthe latter. He says the accused never came to his house, but he does not statein any portion of his deposition, whether in examination or in cross-examination,that he was in his house on the night in which the accused is alleged to havecommitted the dacoity. It is true that the witness Dhanu Ham, father of thewitness Rup Charan, states that the accused never came to his bari and that healways remains at home, but the third witness, a man of the name of Golak RamDeb, while stating that the accused never came to his bari, also distinctlysays that he was not at home on the day in question. Then, it is also said thatif a dacoity had occurred, as alleged by the accused, no noise or cries wereheard by persons who were in a position to have heard them. On this point theevidence of the two witnesses, Santi Ram Namsudra and Abdul Bepari, was reliedupon. But what the first witness says in his cross-examination is this:"No cries could be heard at my house from the place pointed out by theaccused." The other witness, Abdul Bepari, gave his evidence before theMagistrate at Hailakandi, but he was not called before the Sessions Judge andhis former deposition was put in evidence. In our opinion, sufficientfoundation was not laid for the reception of this deposition. The only evidencein support of the allegation that this witness could not be found is that ofthe head constable, Chandra Nath Sarma. He says he recorded Abduls statementand that the latter was examined before the Magistrate of Hailakandi. Hefurther says: Search has been made for Abdul to summon him to attend thisCourt but he could not be found. A warrant was also issued. He is a man of DaccaDistrict."

9. It appears to us that this evidence is clearlyinsufficient. No warrant was produced. There is no evidence on the record toshow that an attempt was made to serve the warrant, or, if so, what was donefor this purpose. There is no evidence to show what was done to find this man.It is quite clear that the witness said that a search was made, but he does notsay that he himself made the search. If he did, he does not state what steps hetook, and if he was not the person who made the search, his evidence on thepoint is, if based on report, inadmissible.

10. Under these circumstances, we think that no sufficientground was made for the admission of the deposition of this witness undersection 33 of the Indian Evidence Act; we think it should have been excluded aswe exclude it from our consideration. On a review of the matters to which wehave referred we find that a portion of the evidence is inadmissible, and otherfacts relied on have not been sufficiently proved or are at least inconclusive.As to the remainder of the evidence, even if we were disposed (as we are not)to accept it as reliable in its entirety, we do not consider that it outweighsthe circumstances favourable to the accused, to which we shall now refer, or issufficient to establish his guilt.

11. In order to justify the inference of guilt, theprosecution must show that the inculpating facts are incompatible with theinnocence of the accused and incapable of explanation upon any other reasonablehypothesis than that of his guilt. The hypothesis in the present case, whichthe prosecution have to exclude is that the crime was the deed of dacoits as isin fact alleged by the accused. He has stated in detail the circumstances underwhich the dacoity and murder took place and has implicated by name the authorsof the crime. No reason has been given why he should falsely implicate thesethree particular persons. This being so, the fact that he names them tends toshow that he at least met them. These persons were apparently present at aninquiry con-ducted by the Police. They should have been, but have not been,examined as witnesses, and no explanation has been offered as to why they werenot so examined. They have themselves not been called to deny the allegationswhich the accused has made against them of being concerned in this murder.Though the prosecution has omitted to call these three persons who are directlyimplicated, it has put forward one Durga Ram, a pan-seller who says that thesethree persons, Narayan, Noyan and Shibram, are also pan-sellers and go toSealtek Bazar for pan. But he cannot say where they were at the time inquestion.

12. Another witness, Prokash Chandra Mazumdar, was alsocalled, apparently to establish the alibi of these three persons. He says thaton the last Tuesday of Agrahayan, which apparently corresponds to the 13thDecember, he saw them at Sealtek Bazar until 11 oclock at night only. Hespeaks, moreover, even as to this period from unaided recollection, and he saysthat there was no special occurrence connected with these three men which wouldmake him recollect their presence on that particular day at Sealtek Bazar.Another apparently remarkable fact is that the Police-papers, to which we havebeen referred, show that, on the 24th December, some cooking utensils werefound in the house of the man Noyan, whom with the other two men the accusedcharged with the crime. According to the same papers those cooking utensils(and it is to be observed that some cooking utensils were admittedly carried inthe boat) were identified by the widow of the deceased as her late husbandsproperty.

13. It is true that the Police Officer says, in his reportof the 25th December, to which we have been also referred, that he did not givecredence to the identification. It may be that the identification cannot berelied upon and that there is in fact nothing in the point which is not capableof explanation. In our opinion, however, it was the duty of the prosecution tohave brought out this matter, and to have explained it if necessary. Were itnot for the view which we take of the other facts given in evidence, we shouldhave considered it necessary to have remanded the case to take further evidenceupon this point. As we have already observed, the deceased was admittedly anolder and a stronger man than the accused. Except for a short space at the bowand stern the boat was closed in. The marks of blood show that the crime wascommitted inside the boat and under the bamboo roof under which, according tothe evidence, a man cannot stand. There was no one else but the accused in theboat and, therefore, no one to manage it during the commission of the crime.The wounds were, as the evidence shows, most severe and numerous. The body wasfound floating in the water. It does not appear to us to be probable, havingregard to the circumstances proved, that a single man and a weaker man than thedeceased (as the accused was) could have been able to overpower the deceasedand to come off without any wound or mark upon himself, even assuming that hehad with him a dao in the boat as is alleged by the deceaseds widow. Herevidence, however, upon this point does not appear to us to be reliable. Incross-examination she said that she had given evidence twice previously in thecase and that she had previously mentioned that the accused took a dao. As amatter of fact, as pointed out by the Sessions Judge, there is no mention to befound of this statement in her previous depositions. This being so and therebeing no other evidence on the point to show that the dao was taken by theaccused, we cannot accept the fact. Nor can, in our opinion, the evidence thatsome marks which were found on the dhoti of the accused and which appeared tothe witnesses to be like marks of blood, be accepted. We have already dealtwith the question of the admissibility of the accuseds alleged statement tothe Police Officer. There is nothing to show that the mark, supposed to be thatof blood, is in fact the mark of blood as the cloth was not sent for chemicalexamination. Further, the so-called marks of blood were not discoveredadmittedly until the 18th of December and after the accused had been in thecustody of the Police for three days. Unless, therefore, these so-called marksof blood were so insignificant as to have been seen with difficulty, it iswholly unexplained why it was not discovered before the expiration of thisperiod.

14. Nextly, the accused was alone with the deceased at nightof the 12th December at which time, so far as we can see, if the accused hadbeen so disposed, the robbery and the murder could have been committed.According to the prosecution witness, the deceaseds widow Sanjharia, theaccused knew that the deceased had money in his cloth-belt, yet that belt andmoney were left in the boat and, so far as we can see, the contents of thatbelt were intact. This, we need hardly say, is not likely to have happened, hadthe accused been the person who committed the crime, but it is what we mightexpect to have occurred, had the robbery and murder been committed by thirdparties, who, unless they carefully searched the accused or the boat, wouldhave been unaware of the fact that he carried on his person in a cloth-belt asum of about Rs. 80.

15. It is further the case for the prosecution that theaccused must have stolen the money, which is alleged as the motive of themurder, yet we are also asked to believe that the accused who had so stolen themoney was obliged to request the witness, Ratan Mali, shortly after the allegedmurder and robbery, to lend him a pice to enable him to cross the Matijurighat. Even supposing that the accused had committed the robbery and had nottaken all the money with him, it seems to us in the highest degree unlikelythat he should not have kept even a pice about him.

16. Then we have the circumstance to take into ourconsideration that none of the missing properties were discovered with theaccused, though his house was searched on the 16th December. We are, on thesefacts, disposed to think that the dacoity and murder were committed by severalpersons and not by a single man as alleged; and we think that some of thesefacts, so far as they go, tend to exculpate the accused from having taken anypart in the crime. There are certainly, if all the admissible evidence be true,which we must not be understood to hold, circumstances which threw somesuspicion on the accused and which demanded a careful judicial inquiry. Butthey are insufficient to establish his guilt, and are, moreover, in ouropinion, outweighed by the general considerations, to which we have justreferred, which tell in his favour. We, therefore, agree with the verdict ofthe majority of the jury and acquit the accused and direct that he be releasedfrom jail and set at liberty.

17. We desire to express our obligations to the learnedVakil, Babu Bhujagendra Mustafi, who has kindly appeared on behalf of theaccused (who was previously unrepresented) and who has carefully laid before usthe questions of both fact and law which required our consideration in thecase.

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Emperor vs. KangalMali (18.09.1905 - CALHC)