W.S. Coutts, J.

1. The appellant in this case, Chandrika Ram Kahar, has been convicted by the Sessions Judge of Mansbhum Sambalpur, under S. 302 of the Indian Penal Code for the murder of his wife Budhua Kaharin on the 9th October last and has been sentenced to death.

2. The case for the Crown is that Chandrika and his wife were not on good terms and that for this reason she lived almost entirely with her father Keshwar Ram. Before the date of her death she had been living with Keshwar for about six months, but on the evening of that day, at about 7 P. M. Chandrika came and said he wanted to take her to his house for the Dusserah festival. Keshwar lives in village Kasidih and Chandrika lives in Jugselai, a village about three miles south of Kasidih. Chandrika is said to have been accompanied by another man when he went to fetch his wife from her father's house but afterwards this man disappeared.

3. When Chandrika came to fetch his wife Keshwar told her to go and they started off together. They did not go straight to Jugselai, however, but went to a Ramlila performance which was being held in a shamiana at Sakchi. There they stayed until about midnight when the performance ended and then went off together towards Jugselai.

4. They had gone only about 200 yards when Chandrika seized his wife's arm apparently because she was starting to go in a wrong direction. She asked him why he was doing this and he said it was because she must go to his house. She replied that she would go but he must not hold her arm. They then went on, she going ahead and he following.

5. Next morning at about 10 A. M. Sub-Inspector, Sukhdeo Sahay who was investigating a case in the neighbourhood, got certain information from one Ram Prasad in consequence of which he went with him and Mr. Rivett, Additional Superintendent of Public Safety at Jamshedpur, to a spot near the pathway which runs from Kasidih to Jugselai where they found the woman Budhua lying partly supported by a heap of stones with her throat cut and her clothes covered with blood. There was a pool of blood at a spot about 45 paces to the north. The woman was unable to speak but when asked who had wounded her she touched the sindur mark on her forehead which is placed on the forehead of married women by their husbands. The Sub-Inspector asked the woman if by indicating the sindur mark she meant that she had been murdered by her husband and she nodded her head in assent. Mr. Rivett was then asked by the Sub-Inspector to go on his motor bicycle to the hospital and get medical help. He did so and Dr. Sen, who is the Deputy Chief Medical Officer, sent his assistant Dr. Roy in a car with necessary appliances. Dr. Roy took the woman to the hospital where they arrived about 11 A. M. and there an operation was performed which took about 11/2 hours. Meanwhile a Muhammadan, who cannot be traced, had given information to Budhua's father Keshwar Ram and Keshwar went first to the thana and then to the hospital. The Sub-Inspector was there but apparently did nothing until after the operation when there seems to have been an interview with Budhua after which the Sub-Inspector recorded a statement of Keshwar which has been treated as the first information in the case.

6. The Sub-Inspector then went to Jugselai which is about a mile from the place of occurrence and arrested the accused who was at the time sleeping in his house. After arresting Chandrika the Sub-Inspector took him to the hospital. From there the Sub-Inspector went to the District Superintendent of Police and with him went to try and find a Magistrate. He failed to find either of two Honorary Magistrates at their houses; so he returned to the hospital. This was about 5-30 P. M. He then confronted Budhua with her husband Chandrika and asked her who had cut her throat whereupon she pointed to Chandrika. She was asked if any one assisted Chandrika and she held up her forefinger. This was taken to indicate that another man was assisting and when she was asked what the other man did she pressed back her head with both hands. Other questions were then asked and amongst them what she had been cut with In reply to this she measured off about 9 inches on her arm and also held up two fingers together. Soon after this an Honorary Magistrate, Mr. Brokenshire appeared, and after a consultation with Mr. Rivett they both went into the room where the woman was, taking with them Chandrika and a pick-pocket who had been arrested and who happened to be there. Questions similar to those asked by the Sub-Inspector were put to her and she is said to have made the same kind of gestures indicating Chandrika as having wounded her with a knife and as having been assisted by some other person. After some ten or twelve questions had been asked the examination was stopped by Dr. Sen on account of the condition of the woman who was by that time very exhausted. Budhua died on the 11th at about 5 P.M. and the evidence of the Sub-Assistant Surgeon who conducted the post-mortem examination shows that the larynx was completely divided through the thyroid cartilage and partly cut through the crico thyroid membranes, about 1/3rd inch of its diameter. The pharynx was cut, about 2/3rd inch of its diameter beneath the thyroid cartilage and he deposes that she died from the effects of these injuries.

7. There were other slight injuries which it is unnecessary to detail as they have no bearing on the case. The wounds could not have been self-inflicted and the medical evidence shows conclusively that the woman Budhua has been murdered. The murder appears to have been of a peculiarly brutal character and there is no doubt that if Chandrika were guilty the only sentence which it would be possible to inflict would be the extreme penalty of the law. The question is whether the evidence is sufficient to establish Chandrika's guilt.

8. The learned Sessions Judge who has tried the case, which is a difficult one, with great care, has dealt with the different stages of the prosecution case separately, and for the sake of convenience I propose to deal with these stages in the order in which he has taken them.

9. First there are, what has been referred to as the unhappy relations which are said to have existed between Chandrika and his wife Budhua. There are three witnesses in regard to this stage of the case. Keshwar the girl's father and two neighbours, Mussammat Dhanmatia and Bhikari Lal. Bhikari Lal relates a curious incident which he says he witnessed when Chandrika beat his wife and threatened her with a sword stick.

10. The story is uncorroborated though other persons are said to have witnessed the occurrence and this evidence has very rightly been rejected by the learned Sessions Judge. There remains the evidence of Keshwar and Mussammat Dhanmatia. Dhanmatia says she knows nothing about the relations which existed between Chandrika and Budhua.

11. The learned Sessions Judge, however, seems to think that her evidence supports the view of unhappy relations because she deposes that Budhua did not live constantly at accused's house but often came to her father's house and was often fetched away by the accused's father. This however, is hardly a correct summary of her evidence on this point. What she says is:

"I have been living there for four years and Keshwar was living there before me. I have seen Budhua at this house for six months. Before that she was not there. I had never seen the accused at Keshwar's house before."

And again:-

"During the four years that Keshwar lived there Budhua used to come and go. Often the accused's father used to take her off to the accused's house."

12. This indicates nothing more than a very ordinary state of affairs; and certainly does not support the view of unhappy relations.

13. I now come to Keshwar's evidence.

14. Before the Sessions Judge he says that the accused:-"married my daughter Budhua, nine years ago. She lived with him for four years off and on but was always coming back to my house on the plea of ill treatment.

15. She came last to my house in Kasidih in Chait and lived with me for six months."

16. And again:-

"During the six months she went away once for a week to the accused and complained about him on her return,"

17. Before the Committing Magistrate however, what he said was:-

"On last Chait my daughter came to my house after the death of my wife and children...............................................My daughter told me when she was younger that her husband ill-treated her..........................................She has not told me this since she came to live with me last Chait."

18. This clearly indicates that although when they were first married there may have been some ill-treatment of Budhua by Chandrika there is no reason to suppose that in recent years they have been on bad terms and I am unable to accept the version which Keshwar has given in the Sessions Court and which is obviously an improvement introduced to suit the prosecution case.

19. It is true that Keshwar in his statement to the police which has been treated as the first information in the case said that his daughter did not want to live with her husband as he used to ill-treat her. But this statement, as will presently appear, is not really the first information at all and consequently not evidence. When the evidence regarding this stage of the case is examined then it is clear that no case of unhappy relations between Chandrika and Budhua is made out; and, if anything, the evidence is to the contrary for both Keshwar and Dhanmatia say that when her husband came on the evening of the 9th, Budhua went away with him without any remonstrance.

20. Dhanmatia further says that there was no quarrel or dispute at all and it seemed to her to be a case of an ordinary departure of the husband taking the wife. It is true that two witnesses, who say they saw Chandrika and Budhua at the Ramlila, said that when they left the Ramlila Chandrika seized Budhua's arm. But why he did so is by no means clear from their evidence and even they depose that she said that she would go along with him if he let her hand go.

21. This hardly indicates unwillingness to go with him; moreover it is significant that before the Committing Magistrate neither of these witnesses say anything about the seizing of Budhua's hand by Chandrika and I am very much inclined to think that this part of the evidence is embroidery. The evidence then, in my opinion, does not disclose any unhappy relationship between Chandrika and his wife and with this the motive for the crime disappears.

22. I next come to the taking away of Budhua by her husband on the evening of the 9th. The evidence on this point consists of the statements of Keshwar and Dhanmatia. Both these witnesses say that Chandrika was accompanied by another man who, however, appears to have disappeared before Chandrika left with Budhua.

23. This evidence, and in particular the evidence of Dhanmatia, which is entirely disinterested, has been believed by the learned Sessions Judge. No reason why it should be disbelieved has been shown to us and I accept it as establishing that Chandrika went to Keshwar's house on the evening of the 9th and left with Budhua.

24. The next stage of the case is the Ramlila party and the subsequent scene between the husband and wife. The witnesses to this are Ramdas Kahar, carter, and Sukhdeo Kahar, a mechanic at Tata's Iron Works. They say that they saw Chandrika and his wife at the performance, that they stayed till the end. Ramdas and Sukhdeo were behind them as they went along the road after the performance and they saw the incident of the seizing of Budhua's hand.

25. For the reasons I have already given I disbelieve the story of the seizing of Budhua's hand and I am inclined to distrust the rest of their evidence. They do not give any reason for specially noticing Chandrika and Budhua at the Ramlila party. Ramdas says that there were separate places for men and women at the performance whereas Sukhdeo says there were not and they have certainly added to their story in the Sessions Court.

26. This they have done clearly in order to assist the prosecution case of unhappy relations between Chandrika and Budhua and it would be, in my opinion, very unsafe to accept their evidence which looks to me suspicious as if it had been introduced in order to show that Chandrika was with Budhua up till midnight because the prosecution case is that Chandrika cut Budhua's throat at about 1 A. M.

27. I now come to the most important part of case, namely, the direct evidence connecting Chandrika with the crime. The evidence is that alleged to have been furnished by Budhua herself. The first information we have that Budhua implicated her husband is a passage in the commitment order to the following effect;-

"The Sub Inspector proceeded towards the place where he met one Ram Prasad (P. W. 15) who told him that he had seen the woman, and that she was alive-also that on being questioned, she had pointed to the vermilion stain (sindur) on her forehead. Ram Prasad was of opinion that the woman meant to indicate that her husband had cut her throat."

28. Now, if this is so, Ram Prasad's statement to the Sub-Inspector was clearly the first information in the case for he also deposed that the woman had bean recognized; yet not only was his statement not recorded as a first information by the Sub-Inspector but he was not examined in the Sessions Court and he was not even tendered as a witness.

29. The learned Government Advocate suggests that he was probably not examined or tendered because his statement, before the Committing Magistrate was not in accordance with the statement which he had made to the Sub-Inspector and was an untrue statement made to bring his evidence into line with the prosecution case on this point. To satisfy ourselves on this point the learned Government Advocate has asked us to look into the police diary and we have done so.

30. It appears that Ram Prasad's statement was not recorded by the Sub-Inspector but the Sub-Inspector made a note to the effect that he got information from Ram Prasad Bania that he had seen a girl with her throat cut lying near the nullah of the new cooling tank :-

"The girl was saying that her husband had cut her throat."

31. Now it seems to me that this statement does not necessarily conflict with the statement made before the Committing Magistrate but whether it does or not Ram Prasad was apparently the first person to see the woman Budhua and he was the first person to give information to the police. This being so, the Sub-Inspector should have recorded his statement as the first information and the Crown should certainly have either examined or tendered him in the Sessions Court.

32. The failure of the Sub-Inspector to record Ram Prasad's statement as the first information entails the discarding of the so called first information, and the non-production of Ram Prasad in the Sessions Court has had the more serious consequence of depriving the accused of the right to cross-examine a witness who either heard the woman speak or whose interpretation of gestures made by the woman is clearly the origin of the prosecution case that she was wounded by her husband.

33. Whether he was a false witness or a witness of truth he was a material witness examined by the Committing Magistrate and it was clearly the duty of the Public Prosecutor either to examine or to tender him. There can, I think, be no doubt that the real reason he was withheld was because the Public Prosecutor was afraid of the cross-examination which might arise out of the note made by the Sub-Inspector in his diary. His action was clearly unjustified and cannot but throw a certain amount of suspicion on the prosecution case.

34. I now come to the direct evidence, namely, the gestures made by Budhua in answer to questions; and in the first place I may remark that the learned Counsel for the appellant has not contended that these gestures are not evidence. They are clearly evidence under S. 32 of the Evidence Act and if authority for the proposition were required I need only refer to the Full Fench decision of the Allahabad High Court in the case of Queen Empress v. Abdulla (1885) 7 All. 385 (1885) A. W. N. 78 (F.B.). The interpretation of the gestures, however, is for the Court alone and the opinion of the witnesses as to the meaning of such gestures is not evidence.

35. The first gestures made by Budhua to indicate her husband as having wounded her were, so far as the evidence on the record goes, made to the Sub-Inspector when he first saw the woman about 10 a.m. He says that when he first saw her he asked her who had wounded her and she lifted her right hand to the sindur mark on her forehead. Influenced clearly by what Ram Prasad had told him he asked if she meant her husband and she nodded her head as if assenting.

36. The next evidence as to the gestures is the evidence of Keshwar. Before the Sessions Judge, he deposes to asking exactly the same questions and getting the same gestures in response. This was at the hospital at about 1 P.M., and it is after this that the Sub-Inspector went and arrested the accused. I have no hesitation in saying that this evidence of Keshwar is false because in his statement to the Committing Magistrate he said that when he asked her who had cut her throat.

"She gesticulated by passing her hand to and fro near her throat."

37. This is almost certainly the true description of what happened and the story told in the Sessions Court is a subsequent improvement. So far as the evidence of the Sub-Inspector is concerned, it seems curious if in fact Budhua's gestures did indicate that the wounds had been caused by her husband that he did not go or send to arrest Chandrika at once and it appears to me that perhaps unconsciously he was influenced in interpreting some vague movements of the woman's hand by what had been told him by Ram Prasad. It is impossible, therefore, in my opinion, to place reliance on this witness.

38. I now come to the gestures made to the Sub-Inspector and Mr. Brokenshire on the evening of the 10th. The Sub-Inspector having already twice questioned the woman-once in the morning and again with Keshwar-it is somewhat difficult to understand why he questioned her again. He does not explain this but it may have been because he had then arrested Chandrika and had him at the hospital. In his evidence he suggests that when he questioned Budhua, a person who was accused in another case was present as well as Chandrika. He does not say so definitely and I am unable to accept the suggestion that this was so because in his record of what took place he notes

"One of the accused, Chandrika Kahar has been caught at Jugselai and produced before Budhua Kaharin."

39. Moreover, Dr. Roy who was present at the time makes no mention of any one except Chandrika. What the Sub-Inspector's evidence then amounts to is this; producing Chandrika before Budhua he asked her who had cut her throat and she pointed to Chandrika. He then asked her if any one had assisted Chandrika and she lifted her forefinger : this was taken to indicate that there was another man, and asked what the other man did she pressed back her head with both hands. Asked with what she had been wounded she indicated about 9 inches on her arm and also held up two fingers together.

40. Very shortly afterwards she was questioned by Mr. Brokenshire in the presence of Chandrika and a man, an accused in another case who happened to be there. The questions he should ask were already indicated to him by Mr. Rivett who had been present in the morning when Ram Prasad spoke to the Sub-Inspector and who also had been present at the time when the Sub-Inspector questioned the woman in the evening. The questions were put by Mr. Brokenshire through Mr. Rivett and according to the evidence of these two gentlemen the gestures made by her were almost the same as those which had been made to the Sub-Inspector.

41. Now, when Mr. Brokenshire was questioning the woman through Mr. Rivett, Dr. Sen was present and when the Sub-Inspector was questioning her Dr. Roy was present and on two important points in connection with the gestures made they contradict Mr. Brokenshire, Mr. Rivett and the Sub Inspector. They say that when the woman was asked with what she had been wounded she held her hands apart.

42. Dr. Sen further says that when she was asked who had held her down she pointed to the other man who was in the room along with Chandrika. This statement of Dr. Sen, if we believe it, is very important because there is no suggestion that the other man who was in the room was the other accused in the case and it indicates that the woman was merely making vague movements without understanding what was being asked or what she was doing and that those movements were interpreted by the Sub Inspector, Mr. Rivett and Mr. Brokenshire to fit in with the preconceived idea which they all undoubtedly had.

43. I do not mean to suggest that any of these witnesses had intentionally given false evidence, but there is a very grave danger that they may have interpreted vague gestures in accordance with their preconceived idea. The woman was obviously in a very weak state and evidently hardly knew what she was doing. Keshwar says she was salaaming everyone that came in. This salaaming may very well have been interpreted as touching the sindur mark and Mr. Rivett says that.

"The woman sometimes answered at once and sometimes turned her head to the wall and made no answer until it had been repeated. She did not seem to understand that a question was directed to her until she was touched."

44. The questioning of the woman finally had to be stopped by the doctor on account of her exhausted condition. In these circumstances it would, in my opinion, be in the highest degree unsafe to rely on gestures made to witnesses who as I have already said, had a strong preconceived idea that it was Chandrika who had wounded the woman.

45. The learned Sessions Judge has not accepted the evidence of the doctors where they contradict the Sub-Inspector, Mr. Rivett and Mr. Brokenshire; but they are very emphatic in their contradiction, and I think it is just as probable that they are right as that the other witnesses are right.

46. There are two other reasons, why I think it would be dangerous to accept the evidence as to the gestures which has been given by Mr. Brokenshire and Mr. Rivett. One is that the record of the interview was made after it was over. This introduces a possible element of mistake increased by the preconceived idea, because the witnesses have deposed after referring to this record.

47. The other is that Mr. Brokenshire's knowledge of the vernacular is clearly not great. I do not know what Mr. Rivett's qualifications in this regard may be, but it is not at all impossible that the questions as put by these gentleman might not be understood. For all these reasons, it would in my opinion, be very unsafe to rely on the direct evidence which is supposed to have been given by the woman Budhua.

48. The only evidence then which connects the accused with the crime is that at about 7 P. M. in the evening he went to Keshwar's house and his wife left with him ostensibly to go to his house at Jugselai. This undoubtedly is a very suspicious circumstance and the accused, if he is in fact innocent, would have been well advised to explain his movements after that time. Accused persons, however, are very often badly advised in this country and the learned Government Advocate has admitted that this in itself is not a circumstance on which a conviction could be based.

49. Moreover there are circumstances in the case which are certainly favourable to the accused. The instrument with which the crime was committed has not been found nor have any blood stained clothes belonging to the accused been found although it is almost certain that the clothes of the person who wounded the woman must have been stained with blood. The accused's conduct too after the occurrence seems more consonant with innocence than with guilt for when the Sub-Inspector went to arrest him he found him asleep in his house.

50. Further the prosecution case does not by any means eliminate the possibility of the crime having been committed by some one other than the accused. The woman's father deposes that when she left him she was wearing more ornaments than were found on her person when she was first seen by the Sub-Inspector and Rs. 4 out of Rs. 5 which her father had given her when she left the house had disappeared. It is not suggested that either the ornaments or the money were taken by the accused so that some one must have robbed her and it is not impossible that the robber was the person who wounded her.

51. Further the prosecution case clearly indicates another person besides the accused being implicated for a second man is said to have gone to Keshwar's house with the accused when he went to fetch his wife and unless we accept, the gestures of the woman in pushing her head back as indicating the part taken by the second person, which we cannot do for the reasons I have given, this second man might very well be the person who committed the murder.

52. In the result then I am not satisfied that the case against the accused has been established and I would set aside the conviction and sentence and acquit him.

Robert Lindsay Ross, J.

53. I agree.