Kailash Missir vs Emperor

Scroope, J.—This is a reference u/s 374, Criminal P.C., regarding one Kailash Missir, a Brahmin, who has been found guilty u/s 302, I.P.C., by the Sessions Judge of Gaya in disagreement with the assessors for the murder by poison of one Darogi Gandharpa of Nima Bazar, Arwal Police Station, in Jehanabad Sub-division. That the deceased Darogi was poisoned by aconite on 17th December last is proved in this case beyond any doubt at all, for the Chemical Examiner found traces of aconite in the viscera of the deceased, and he also found traces of aconite in the food which is proved to have been partaken of by the deceased on the night he died.

The case against the accused, as being the parson who got the aconite administered to the deceased, rests entirely on the evidence of a girl Ramdai who is the step-daughter of the deceased Darogi. On the evening of 17th December Darogi was taken suddenly ill with purging and vomiting and what the witnesses call twisting of the tongue, in fact with all the standard symptoms of aconite poison and died, and in reply to the questions of the neighbours who had gathered, Ramdai said that on that very evening the accused had given her a pill (baria) to give to her father and that she had done so by mixing it with cooked sag and putting in the deceased''s evening meal. Amongst those who arrived on the scene at the time of Darogi''s fatal seizure was the chaukidar Deodhari Gope who, on hearing the girl''s story, at once went off in search of the accused, but could not find him. He then took the girl straight off to the Arwal. Thana which is 13 miles off and her statement was recorded on the following morning at 5 a.m. according to the Sub-Inspector. This is shortly the case on which the conviction is based, but I cannot see how the prosecution can escape from the position that the girl is an accomplice. The question at once arises: Why did she not tell her father that she was giving him a pill in his food?

According to her statement in the first information, Kailash, the accused, called her up on his way home from his orchard in Nima which is a distance of some 200 yards from Darogi''s house; there was a Babhan with Kailash, and the latter gave her the pill in the presence of the Babhan and her small brother Kalika whose age is between 9 and 10. She describes him as a Babhan whose name she does not know, but he is a resident of Usri. Kailash asked her to keep the pill and to mix it secretly with the sag which was to be given to Darogi that night. "As Darogi was under his treatment I thought it to be a medicine" says the witness. Thus, according to the girl''s evidence, and that of other witnesses, for instance Rameshwar Jogi, Darogi had been ailing for some time with fever or dysentery or both; Kailash had been treating him; another Baid who treated him was Sheo Pathak (P.W. 8). Whore then was the necessity for Kailash to impress on the girl the necessity for secrecy? He could have given the pill in the ordinary way to the girl to give to her father. Besides, if she really thought it was a medicine, there was no reason why she should not have told her father; but the learned Sessions Judge rejected that theory and infers from the use of the word "secretly in the first information report that the accused did impress on the girl the necessity of keeping her mouth shut about it, and that influenced by the fact that he was a Brahmin she did so. The fact that he was a Brahmin and warned her to keep silent might account for her keeping her mouth shut at first, but it is in evidence through Pragash Jogi (P.W. 16), for whom Darogi sent when he got the fatal seizure due to the poisoning, that Darogi accused the girl of having caused his death. Even then she was silent about the pill. In her evidence in Court she says that she forgot to tell her father about the pill. Then when pressed on the point in cross-examination she states that she told her father she had given him a pill, but the learned Sessions Judge found, and I do not think that there is any doubt about the correctness of his finding, that it was not till the villagers questioned her after Darogi''s death that she mentioned the pill incident to anybody.

The learned Sessions Judge is of opinion that it is only because Ramdai is a child that her story is credible and that it would not be credible if she were an adult in which case she could not have been an innocent accomplice. Her age is of great importance; the learned Sessions Judge gives it as 12 years; one assessor thought her 11; the other thought she was 12 or 13. Even, allowing for her age, it is clear enough that the child is a ready liar and, in my opinion, it is not safe in this case to place too much reliance on any differentiation that arises between her and an adult by reason of age. Her mother is dead; she and her step-sister Saraswati, who admittedly follows the profession of a prostitute and a dancing-girl, live with Darogi; the girl is married but who her husband is does not appear; it is perfectly clear that a child brought up in such surroundings, and in all probability herself a prostitute must develop a degree of precocity both in mind and body which would not be found in a girl brought up in more fortunate and more sheltered circumstances There is another circumstance, in my opinion, pointing strongly to her being an accomplice, namely that she avoided taking any of the poisoned food herself. There is nothing on this point in her first information; that is natural enough; but in her evidence we find the following:

I took the sag out of the katora and placed it in the thali for my father with the rice. My father ate it. Some of it was left. I washed the katora.

To the Court she said:

I washed the katora because the accused told me that the katora in which the sag was ought to be properly washed.

She further says:

Then six other children had their meal front this katora. I had my meal from another thali.

Thus not only did she wash the katora before the other children ate from it (who these other children were does not transpire), but she took the further precaution in her own case of taking her food from another thali. That seems to me to show a very remarkable degree of circumspection and prudence in this so-called child and is not to my mind reconcilable with any other theory than that she knew that she had given poison to her father. I cannot reconcile either her evidences about the washing of the katora out of which the children had their meal with the fact that the contents of this thali were subsequently found to contain aconite. There may be reasonable confusion in the girl''s evidence as to the different utensils and who fed out of them, but the salient fact does not emerge that she took very good care to avoid eating the poisoned food or from the poisoned dish. Another fact which impressed me very much in the case was the fact that before his death the father told the girl she had caused his death. The learned Sessions Judge does not think this matter as of very great importance because it was natural for the deceased to suppose that it was his food which made him ill and Ramdai had been concerned in the preparation of that food. That, of course, is a feasible view to take of the position, but this circumstance has got to be considered with the others I have mentioned; clearly the stepfather was not a great believer in his stepdaughter to put it mildly. Suppose this girl were on trial for this offence, as she well might have been on the state of the evidence, and that it was proved that she was under 12 years of age which is not by any means certain, the question would then arise u/s 83, I.P.C., whether she had attained sufficient maturity of understanding to judge of the nature and the consequences of her conduct. In my opinion, having regard to the fact that if not a prostitute she was living with a prostitute and is undoubtedly being brought up to follow that trade, and to her admitted silence while her father was dying even on his taxing her with having put something in his food and to her precautions against taking the food herself, there can only be one answer and that is that she knew she was giving her stepfather poison. Of course it is a reasonable answer to the accomplice theory as urged by the learned advocate for the Crown, that it would be an unnatural thing for the child to poison her own father but the man was her stepfather and whoever gave her the pill may easily have held out some inducement; it is difficult to surmise what may happen in a prostitute''s house but obviously a multitude of considerations may arise. The stepfather was evidently very keen on keeping the senior sister Saraswati under his control and living on her earnings; the prosecution case is that the stepfather, and Kailash were at loggerheads about Saraswati as the latter wanted to take her away and keep her entirely as his own mistress instead of enjoying her vicariously with others. This is alleged to be the motive for the murder; Kailash or somebody else may have been anxious, to take the young girl of 12 away similarly and might have held out all sorts of inducements to her and so got her to administer the poison so as to get rid of an ailing old stepfather who was a drag on the girls.

The question then arises what is the position if we treat this girl Ramdai as an accomplice as, I think, we must on the evidence. There is no definite rule of law that a person cannot be convicted upon uncorroborated evidence of an accomplice; but apart from the presumption arising u/s 114(b), Evidence Act, to do so puts her evidence on a different footing to that on which the learned Sessions Judge considered it. I do not consider the girl''s statement is a safe one to act on. Her tale is that the accused called her, gave her the pill in the presence of her brother and a Babhan and told her to give it secretly to Darogi. This Babhan is mentioned as a witness in the first information and a man was examined who is said to correspond to the. Babhan, but he did not support the girl''s story at all. It seems to me most unlikely that the accused would have given the poison to the girl in the presence of an adult witness. According to Ramdai the accused and the Babhan often came to her house during her father''s illness and sometimes they slept the night with Saraswati. If she is telling the truth then the Babhan must have been an accomplice and if the giving of poison was their joint act then it demolishes the prosecution theory that Kailash''s object was to secure complete possession of the girl Saraswati. It is most unlikely that the accused would have given the poison in the open when admittedly there were people in the neighbouring fields not to speak of the Babhan who was at hand. Thirdly, the accused had been treating the deceased, at least up to some time before the occurrence. Why then the necessity for the secrecy as I said above or for using the girl as an intermediary at all; I think this last point is strongly against the prosecution story.

There is another possibility and that is that the girl, feeling in a way responsible for her stepfather''s death as she cooked for him, with circumstances pointing conclusively to death by poison, the neighbours present asserting the same thing, and suspicion falling on the acknowledged enemy of the family Kailash, trumps up the present story. The learned Sessions Judge is impressed by the fact that at her age she could not know anything about the properties of aconite and that her story came out prior to and not subsequent to the chemical examination. But she herself states that her father was in the habit of taking pills from Baids and that she used to go to a Baid''s (Sheo Pathak''s) house and get pills, and she used to keep them in her father''s room. Her father suffered from dysentery and was in the habit of getting treatment from the local Baids, so there would be nothing remarkable in the child inventing the story about the poisoned pill. It is further to be remembered that the prostitute Saraswati, Ramdai''s sister, was away on a dancing tour at this time and had been away for about a month and did not return home till after Darogi''s death; so there was no immediate cause for the accused all on a sudden to poison the stepfather; the quarrel about the mare had taken place a month previously. In my opinion the circumstances do not exclude even this further possibility of a trumped up story.

Thus, in my opinion, the evidence is not sufficiently, reliable to support the conviction and the conviction and sentence passed by the learned Sessions Judge must be accordingly set aside and the accused be acquitted.

Chatterji, J.

Kailash Misser was found guilty of murder (Section 302, I.P. C)., and was sentenced to death by the learned Sessions Judge of Gaya disagreeing with all the assessors.

The case against him was that he gave a black baria (pill) containing aconite poison to a girl Ramdai, stepdaughter of the deceased Darogi Gandharp, directing her to mix up the pill secretly in the cooked sag which she was to serve on to him in the night meal. She acted accordingly and the result was that Darogi was taken seriously ill and died within a couple of hours or so after partaking of the food.

The conviction rested on the evidence of the girl Ramdai who deposed to the facts above set forth. The question for consideration was whether she was a reliable witness or whether she had to be treated as an accomplice, and if so, whether in the absence of independent corroborative evidence her testimony was sufficient to hold the accused guilty.

The learned Sessions Judge refused to treat her as an "accomplice" in the accepted sense of the term, being of the view that she was at the most "an innocent accomplice" not having any guilty intention or knowledge and was not a guilty associate in the crime. He thought that the story itself had the stamp of truth as coming from a child of 12, who could not have at once invented it in a manner to carry conviction to all who heard her. According to him sufficient corroboration was added to her evidence by reason of there being an adequate motive on the part of the accused for the commission of the crime. The discrepancies in her evidence were on minor details and largely due to her youth and inexperience. The story itself however was one which, the learned Sessions Judge observed, he himself could not have credited, had it come from an adult.

It is apparent that the learned Judge had accepted the story of the girl as reliable mainly because it had come from a mere child. Her age therefore was an important factor in the weighing of her evidence. It had to be noted that the age of the girl had not been attempted to be ascertained with any degree of precision by medical examination, a sad oversight. The learned Judge had not deemed her to be doli incapax being a person incapable of committing an offence coming within the purview of Section 83. I.P.C. She was not found to be a girl below 12. Her age according to three of the assessors was between 12 and 13 years and one assessor held her to be about 11, and the learned Judge in the record of her deposition put down her age as being 12 to 13 years though throughout in the judgment he described her as being a girl of 12. On the facts it could not be seriously contended that she had not attained sufficient maturity of understanding to judge of the nature and consequences of her conduct on that occasion, even if it was found agreeing with one assessor that she was but 11. She knew the difference between poison and medicine as also the fact that it was poison which was contained in the pill which had made her father ill and had eventually caused his death. She knew that a medical pill had a curative effect; that it was a pushtai (tonic). Accordingly there was no bar to her being held an accomplice it the facts and circumstances warranted such a conclusion.

In the New Oxford Dictionary it is stated that the word "accomplice" may be spelt as "a complies" meaning a partner in crime, an associate in guilt. In the case of United States, v. Neverson 14 Century Digest, Col. 1279, it was held that the term "accomplice" signifies a guilty associate in crime. In another case, White v. Commonwealth 14 Century Digest, Col. 1280, it was stated:

Where the witness sustains such a relation to the criminal act that he would be jointly indicted with the defendant, he is an accomplice.

The above two cases were referred to in Ramaswami Gounden v. Emperor [1904] 27 Mad. 271. Participation in a crime by the witness concerned might vary in the extent of the complicity. The crime again might be either a serious one or light, uncommon or common, and the degree of corroboration in material particulars would vary accordingly, and in exceptional cases might even entirely be dispensed with. Pro tanto an accomplice being an immoral and tainted person would be considered as unreliable. Illus. (b) Section 114, is but a maxim, i.e. a rule of caution and of guidance, and the raising of the presumption would therefore be left to the discretion of the Court, in the exercise of its sound judicial discretion while taking the evidence of the accomplice into consideration in the light of the proved facts and circumstances of the particular case. The Court is not bound to raise a presumption, but may raise it, and Section 4, Evidence Act, states that where the Act provided that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved or may call for proof of it. The substantive law is laid down in Section 133, Evidence Act, that an accomplice shall be a competent witness against an accused person and the conviction would not be illegal, because it proceeds upon the uncorroborated testimony of an accomplice. This, of course, did not indicate that the presumption laid down in Illus. (b), Section 114, was to be disregarded by the Court. As is observed in Emperor v. Shrinivas Krishna, [1905] 7 Bom. L.R. 969, the right to raise a presumption was sanctioned by the Act; and it would accordingly be an error of law to disregard it. What effect is to be given to it had to be determined by the circumstances of each case. Phear. J., in Emperor v. Sadhu Mandal 21 W.R 69 Cr held on a consideration of the several sections above referred to "that the legislature had laid it down as a maxim or rule of evidence resting on human experience that an accomplice is unworthy of credit against an accused person unless he is corroborated in material particulars in respect to that person; that it is the duty of the Court, which in any particular case had to deal with an accomplice''s testimony, to consider whether this maxim applies to exclude that testimony or not; in other words, to consider whether the requisite corroboration is furnished by other evidence or facts proved in the case, though at the same time the Court may rightly in exceptional cases, notwithstanding the maxim, and in the absence of this corroboration, give credit, to the accomplice''s testimony against the accused, if it seeks good reason for doing so upon grounds other than, so to speak, the personal corroboration."

Thus in the case where the witness, was merely a youthful tool in the hands of the accused who stood to him in loco parentis, the rule was held to have no application: vide the case of Ramaswami Gounden v. Emperor [1904] 27 Mad. 271. Similar observations are to be found in Emperor v. Nilkanta [1912] 35 Mad. 247, Rex v. Tate [1908] 2 K.B. 680 and In re Meunier [1894] 2 K.B. 415. The presumption of untrustworthiness may be rebutted by special circumstances; vide Muthukumaraswami Pillai v. Emperor [1912] 35 Mad. 397. As held in Queen-Empress v. Chagan Dayaram [1890] 14 Bom. 331 and. King-Emperor v. Mohiuddin Sahib [1902] 25 Mad. 144, the rule in Section 133 and in Section 114, Illus. (b) are parts of one subject, and neither section is to be ignored in the exercise of judicial discretion. As Woodroffe in his, book on Evidence states at p. 920, Edn. 8:

The general result therefore that in almost, all cases the presumption mentioned in Section 114, Illus. (b), should be raised and corroboration in material particulars required.

Illustration (b), is however the rule, and when it is departed from, the Court should show, or it should appear, that the circumstances justify the exceptional treatment of the case. It is not enough for Court to state the rule pro forma and merely as a reason to evade it; the Courts must act up to it. So long established a rule of practice as that, which makes it prudent, as a general rule, to require corroboration of accomplices, cannot without great danger to society be ignored simply because Section 133 declares that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice: vide observation of Jardine, J., in Queen-Empress v. Chagan Dayaram [1890] 14 Bom. 331. Woodroffe remarks at p. 919 that in England there is now an increasing tendency to insist that the evidence of an accomplice must be corroborated. In Archbold''s "Criminal Pleadings" it is said that it is now fully recognized to be an established practice, virtually equivalent to a rule of law, to require corroboration of the evidence of an accomplice by independent evidence on some material. Particular going to the offence itself and implicating the accused: vide Taylor on Evidence (10th Edn.), p. 967. In passing I may refer to two of the recent decisions of the Court of Criminal Appeal in England. The first one is Rex v. Baskerville [1916] 2 K.B. 658, and the authoritative judgment delivered by Lord Reading, C.J., in the case was referred to recently in The Emperor Vs. Jamaldi Fakir and Others, , the observations being as follows:

There is no doubt that the uncorroborated evidence of an accomplice is admissible in law. But it has long been a rule of practice at common law for the Judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the Judge, to advise them not to convict upon such evidence but the Judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence.

This case was considered and applied in Rex v. Beebe [1925] 133 L.T.R. 736, and it was held:

that a Judge should warn the jury that it is not generally but always dangerous, to convict a prisoner on the uncorroborated evidence of an accomplice. It is a misdirection to direct the jury that they ought to convict, if they are quite certain that the accomplice is telling the truth.

Their Lordships of the Judicial Committee in W.C. Macdonald v. Fred Latimer AIR 1929 P.C. 15 observed:

By every Code of evidence the testimony of a professed accomplice requires to be carefully scrutinized with anxious search for possible corroboration.

In this connection reference may be usefully made to the case of Rattan Dhanuk v. Emperor AIR 1928 Pat. 630, where his Lordship the Chief Justice, on a review of the case law on the subject, formulated the principles applicable in such cases, namely that the evidence of an accomplice is regarded ab initio as open to grave suspicion. Accordingly, if the suspicion which attaches to the evidence of an accomplice be not removed, that evidence should not be acted upon unless corroborated in some material particulars, while if the suspicion attaching to the accomplice''s evidence be removed then that evidence may be acted upon even though uncorroborated and the guilt of the accused may be established upon that evidence alone. At p. 674 and 675 of 9 P.L.T. the observations are:

In any circumstances it will be seen that the acceptance of the uncorroborated testimony of an accomplice must be an exceptional event, and in India where special care is needed in scrutinizing the evidence of witnesses in general and of accomplices in particular such a case will be even more exceptional.

The rules of evidence are really nothing more than rules of practical convenience."

Courts of justice being concerned with practical decisions demand proof in conformity with practical standards. To require invariable corroboration of an approver would create a standard of proof which might plunge the work of the Court and the detection of crime into futility etc.

The evidence of the girl Ramdai has accordingly to be judged in the light of the facts and circumstances of the case, due regard being had to the law on the point as above summarized. Admittedly she was proved to be the person who had administered the poison in the food to the deceased and had brought about his death. As she was not a person incapable, of committing an offence there was no bar to her being indicted on a charge of murder along with the accused in the case. That being the position, she might shift on the entire responsibility to the accused to save herself and doubt and suspicion would accordingly attach to her story from the very first.

My learned brother went into the evidence and has brought out some of the important facts and circumstances which go to indicate that this girl had guilty intention or knowledge, and it would be useless for me to go over the same ground again. The principal points are:--(1) that she readily takes the pill from the accused when she knew that there was no occasion for her father to take any more medicine; (2) she knew that the accused''s treatment of her father had hitherto done him no good, and that her father, if told, would not consent to use any pill given by the accused; (3) she takes the pill under a vow of secrecy not to disclose the fact to her father, and that again for no apparent reasons; (4) the pill is given to her with a warning that, if taken, or used by any other, it would do him, or her harm; (5) she takes unnecessary precautions and shows circumspection and prudence not at all called for if she really believed the pill to be nothing but innocuous medicine, a pushtai (tonic); she washes the katora carefully in which the pill had been mixed up with the sag, and does not allow any others, including herself, to partake of it; she takes her own food in a separate thali; (6) she takes care that none else but the deceased partook of the sag in which the pill had been mixed; (7) she stoutly denied having put anything wrong in the food even when questioned on the point by the neighbour Pragrash Jogi (P.W. 10). In the words of the learned Sessions Judge "the girl never confessed to putting anything in the food so long as Darogi was alive," (8) the dying man pointedly accused her of having caused his death and she kept silent; (9) it was after the death of the deceased, and after every one assembled was of the opinion that the deceased had been given poison in his food which had admittedly been cooked for him and served by the girl, that she came out with the story. These points, to my mind, did sufficiently bear out the conclusion of my learned brother.

That she made deliberate misstatements in her initial statement to the Daroga is another leading aspect in the case which cannot be ignored. She stated to the Daroga that it was the deceased himself who had cooked the food, the rice and the sag and had placed the same on the thali; the statement related to a rather important detail, inasmuch as the poison in the case had been administered in the food, and it was accordingly pertinent to enter into the question as to who it was who had cooked the food and had served it that night.

She made another misleading statement by saying that the accused used to visit their house and was giving medicine daily to her father up to the day of occurrence. That this was not a fact was clear from her statement in Court, e.g.,

After Sheosewak''s treatment deceased''s illness went. He was only a little weak; after he got well he took no more medicine. Sheosewak told me that there was no need for my father to take any more medicine. I did not meet the accused from the time of the quarrel over the mare and the day of the occurrence. Prom the date of the quarrel the accused had not been to our house.

Deodhari (P.W. 10) stated:

Darogi resumed his work when he had been cured by Sheosewak Pathak

and that was about two months before he died that he resumed his work. Saraswati (P.W. 18) said that Sheosewak Pathak had cured her father; when accused came to their house after Sheosewak''s treatment he did not come to treat her father. It was pretty clear that all these misleading statements came to be made to save herself of any doubt or suspicion attaching to her.

As pointed out by my learned brother it would be improbable that the pill could have been given to her at the place and in the manner deposed to by her. In an open field where other people were also present and near at hand in the presence of another adult, a Babhan whose name subsequently transpired to be Rajdeyal, the accused was said to have made over the pill to her, the accused knowing all the time that the pill contained deadly poison. He makes over the pill enjoining secrecy, taking the risk that the girl might betray all the same. There would hardly be any necessity for an intermediary when the story was that the accused used to come daily to the house to give medicine to the deceased who was under his treatment

The above facts, to my mind, are sufficient, in circumstances of this particular case for the Court to have raised the presumption in Illus. (b) Section 114, Evidence Act.

There remains the question of motive. My learned brother has found the motive assigned for the murder to be quite inadequate and insufficient. He has also pointed out that the motive would at once fail if it came to be held that Rajdeyal was, under the circumstances, an accomplice, a guilty associate, as he could not be a mere innocent spectator and was an assisting party to the making over of the pill containing the poison.

I have to note that the Babhan, Rajdeyal Singh, was a man well known to the girl, yet to the Daroga she had pretended not to have known him by name. She admitted in her evidence that he was a man who was a friend of the accused and both used to frequent the house of the deceased both in the morning and evening during his illness, and used sometimes to sleep with her sister Saraswati at night. Rajdeyal was a man aged about; 30 years and much younger than the accused who is about 55 or 57. What the exact relation between him and the girl was can only be a matter of guess, but the fact remains that Rajdeyal had been named as a witness while the entire blame had been thrown upon the accused. "Rajdeyal while examined In Court denied all knowledge of the affair and concern in it; that he had corns to be named as a witness might imply that the girl had at least calculated that Rajdeyal would support her story, and the girl''s pretence of not knowing him by name may very likely have bean deliberate. The girl was aged 12 to 13 years and although married did not live with her husband. Her eldest sister was a prostitute by profession and there would be nothing unusual in holding that the girl Ramdai might have been intended to ply the same profession. Having regard to her surroundings she was bound to be a sharp, quick-witted and a precocious girl. Rajdeyal might have been after the girl and between them the whole affair may have been planned. In any case even if it was held that the accused and Rajdeyal were both concerned in the affair they had brought over the girl to their side by inducement and she was a willing and pliant tool in their hands in the matter of poisoning the deceased. It may be noted that Rajdeyal was apparently one of the suspects in the early stages of the case, the police had prayed for issue of warrants for his arrest and afterwards for processes under Sections 87 and 88, Criminal P.C. One again, cannot help suspecting that a girl so pliable so eager to fall in with a vow to maintain secrecy, may be induced to tell a lie under some other motive or pressure.

There was no independent corroboration of the fact that the accused and Rajdeyal had been seen coming to the field where the girl was or that the accused made over the pill to her.

Then again, according to the girl, the pill had been crushed into the sag and the pill was a small sized one, of the shape of two bunts (gram). This would hardly explain the presence of aconite in the remnants of the meal containing the cooked rice and the sag in both of which aconite had come to be detected and the quantity in the food was sufficient to leave stains on the thali in which also aconite came to be detected. This may indicate that the aconite had been strewn over the food in the shape of powder and that again in a much larger quantity and the whole story about the pill might; be a trumped up one and the poison may have been given to her in quite other and different circumstances which are not before the Court. It would accordingly be extremely dangerous to act on the uncorroborated testimony of the girl Ramdai for finding the accused guilty of the grave and heinous offence of murder. No immediate motive for the crime was forthcoming as the occurrence took place in the absence of Saraswati for about a month previous. The case at the most would be one of grave suspicion against the accused, but suspicion would never tantamount to legal evidence. The case had not been proved against the accused beyond all reasonable doubt. I am not at all convinced that the real facts had been placed before the Court and there was an atmosphere of doubt and darkness and the light of truth had not been brought to bear upon it. The case was a fit one for the benefit of the doubt being, given to the accused. I would therefore agree with my learned brother in the order proposed and the conviction and sentence must accordingly be set aside and the accused be forthwith set at liberty.