Basudeb Mandar vs Emperor

Fazl Ali, J.—The petitioner has been convicted u/s 182, I.P.C., and sentenced to three months'' rigorous imprisonment.

It appears that on the 29th, October, 1927, the petitioner lodged an information at Mirganj Thana at about 1 P.M. regarding an attempted burglary in his house on the preceding night, and although he did not specifically accuse any one he did name certain persons and say that he suspected that they might have been concerned in the occurrence. The Sub-Inspector thereupon started investigation and ultimately submitted a. report that the case was false and prayed for the prosecution of the petitioner u/s 182, I.P.C. The petitioner was convicted by Mr. S.S. Varma, a Deputy Magistrate of Madhipura, whereupon he-appealed to the District Magistrate of Bhagalpur who summarily dismissed his appeal on 21st March 1928. Thereupon the petitioner moved this Court and obtained an order directing the District Magistrate to rehear the appeal. The District Magistrate heard the appeal and delivered judgment on 31st July 1928, by which he upheld the conviction of the accused observing that, he saw no reason to modify the opinion which he had expressed on 21st March 1928. The petitioner moved this Court again and obtained a rule which has now come up for final hearing before me.

The main point argued by Sir Ali Imams is that the evidence adduced on behalf of the prosecution though it may be sufficient to give rise to a certain amount of suspicion against the accused is far from conclusive to prove the offence with which he has been charged. As a rule it is not usual for this Court to go into the facts of the case or to go behind the findings of fact arrived at by the Courts below; but in a case which depends wholly on circumstantial evidence the question whether the circumstances taken as a whole amount to conclusive proof of the guilt of the accused or not has often to be considered even by a Court of revision.

In the present case, broadly speaking, there are the following item''s of evidence relied upon by the prosecution: (1) The evidence of the Sub Inspector who went to the locality and observed certain things at the spot. (2) The evidence of P.W. 5, who claims to have been present when the accused was discussing with certain other persons as to how he should implicate the men whom he subsequently mentioned in his information. (3) The evidence of P.W. 6, whose story is that he was going to graze the buffaloes in the latter part of the night when he saw the petitioner and some five men outside the petitioner''s house. (4) The evidence of two neighbours and the chaukidar who depose that they did not hear any hulla on the night in question to indicate that there was any burglary attempted in the house of the petitioner. (The judgment then considered the evidence on merits and holding that it was not sufficient to constitute any conclusive proof that the accused must be guilty, proceeded.) I cannot help quoting in this connexion a well-known passage from the case of Barindra Kumar v. Emperor [1910] 37 Cal. 467 in which Jenkins, C.J., in delivering the judgment of the Court emphasized the distinction between legal proof and suspicion and observed as follows:

in dealing with a case depending largely on circumstantial evidence the rules especially applicable must be borne in mind. There is always the danger in a case like the present that conjecture or suspicion may take the place of legal proof, and, therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Rey. v. Hodge [1838] 2 Lewis. 227, where he said the mind was apt to take pleasure in adapting circumstances to one another, and even in straining them a little, if need be to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.

In this case we must remember that the onus was entirely on the prosecution and it is wrong to argue that it was for the accused to examine the witnesses who were mentioned by him in the first information. In my opinion it was the duty of the prosecution to examine as many of the immediate neighbours of the accused as possible to disprove that any outcry had been raised by the accused on the night of the occurrence and that it was the duty of the Court to have examined the witnesses named in the first information report in order to find out what their version as to the occurrence was. As it is I cannot help feeling that the evidence in the case is neither complete nor conclusive, and although there may be a grave suspicion against the accused, that will be no justification for convicting him of an offence to prove which as has been laid down in a large number of cases, a high standard of evidence is to be generally required.

I would, therefore, allow this application, set aside the conviction and sentence of the accused and direct that his bail bond be cancelled.