P L D 1966 Dacca 589 (PLP)

BAQUER, J.‑The appellant before us, namely, Maina Mia who was put up on trial under section 302/34 of the Pakistan Penal Code along with three others who were acquitted, has been convicted under section 302/34 of the Penal Code and sentenced to death by the learned Sessions Judge of Comilla. The condemned prisoner has appealed and there is also a reference under section 374 of the Code of Procedure by the learned Sessions Judge for confirmation of the sentence of death. We dispose of both the appeal and the Reference together by this one judgment. The trial was held with the aid of four Assessors all of whom were unanimously of the opinion that the appellant was guilty and that the three other accused were not guilty and the learned Sessions Judge in agreement with the unanimous opinion of the Assessors, convicted the appellant as above acquitting the other three accused. Prosecution examined as many as 23 witnesses; the defence did not examine any witness. The case is one of stabbing to death of one Dadhu Mia at 10 p.m. on 16‑11‑1963 on a public thoroughfare near a cinema hall, wine shop and brothel in Comilla town when that part of the town particularly was wide awake and teeming with men. The case started on the basis of a First Information Report lodged within an hour of the occurrence by the complainant P. W. 1 Yusuf Khan who is a distant relation of the deceased. The facts as alleged are these:‑The complainant Yusuf Khan has a jewellery shop named "Yusuf Jewellery" in the Kapuriappati standing on the southern side of the Chittagong Trunk Road which runs from west to east through this area. A part of the building in which this shop is housed belongs to one Ijjatullah P. W. 9 who got a cloth store therein and one Matiur Rahman P. W. 8 is his tailor employed therein. Yusuf Khan also resides in the same shop. At about 10 p.m. he returned from outside and was about to retire for the night when he heard a cry "save me" "save me" in front of his shop. Matiur Rahman P. W. 8 who was seated in the outer verandah facing the road also heard the same cry. He and the complainant found a man coming from the west by a cycle who was confronted just near their shop by two unknown persons who threw him off the cycle and started assaulting him. They saw a scuffle between one assailant and the victim who caught and held the assailant by the leg but the latter extricated himself and started running away eastward while the other assailant escaped northward. P. W. 8 Matiur Rahman raised alarms of "thief, thief", "catch, catch" and some persons in the vicinity chased the man who was running eastward. P. W. 1 Yusuf Khan and P. W. 8 Matiur Rahman brought the injured to their shop and found three fatal injuries on his person. They poured water on his head and immediately sent him to the Sadar Hospital by a rickshaw. On the spot of occurrence they found one shoe, one blood‑stained dagger, one cigarette case, one torch light and one cycle left. P. W. 8 Matiur Rahman, however, did not go to the hospital. In the hospital the condition of the injured became precarious whereupon his dying declaration was recorded by the Sub?-Divisional Magistrate at the instance of the Town Sub‑Inspector of Police and two Chairmen of the local Union Committees who also arrived there on receipt of the information. The injured stated that Siraj Majumdar alias Shiraj, Suruj Mia, Mamin Khan (since acquitted) and another unknown person were his assailants. The complainant lodged an F. I. R., which was recorded by the Sub‑Inspector of Police on duty. In the meantime, a constable named Abu Sayed ‑P. W. 11 and some members of the public chased and caught a man from Kalibari which is at a distance of about 400 cubits from the place of occurrence and found that the man thus caught had two socks in both the feet but no shoe and according to some version, one shoe only. They then brought him to the spot within a very short time. From there the constable seized the shoe, the cigarette case, the dagger, the torch light and the cycle which were found at the place of occurrence and went to the thana where be produced the accused along with these articles. The officer on duty also found stains of blood in the Pyjama as well as in the shirt of the man' who disclosed his Dame and identity. He is appellant Maina Mia hailing from Sylhet and presently working in a Saw Mill in the town. The injured man expired in the hospital at about 3 a.m. Inquest was held on his dead body by P. W. 21 Town Sub Inspector of Police who thereafter forwarded the same to the morgue through a constable for post‑mortem examination. The Assistant Surgeon of the Sadar Hospital held the post‑mortem examination and found two punctured injuries one at the right and the other at the left side of the abdomen and one incised wound on the head. His opinion was that death resulted from shock and haemorrhage due to these injuries which were ante‑mortem and homicidal in nature. The investigation Officer visited the spot, seized some bloodstained earth from the spot and prepared a sketch map of the place of occurrence. He also took specimen footprints of the appellant in presence of a Magistrate, first Class and forwarded them together with the shoe which was found at the spot to the footprint expert attached to the C. I. D., East Pakistan, Dacca, for examination and opinion. He is P. W. 18 Md. Hamid Ali. In due course he got the report of the expert which shows that the impression found in the inner sole of the shoe tallies with the specimen impression of the right foot of the appellant. He examined witnesses and recorded statements and after concluding the investigation, charge‑sheeted all the four including the present appellant under section 302/34 of the Penal Code. After preliminary enquiry by a competent Magistrate the accused persons were committed to the Court of Sessions under section 302/34 of the Penal Code charging that they committed the murder in furtherance of their common intention. The defence of the appellant is not that he was implicated out of enmity or grudge with any of the parties because he admittedly hails from Sylhet practically knowing nothing about the parties. He admitted that he was caught by the constable and some members of the public from the Kalibari just after the occurrence but contended that it was a case of mistaken identity and that he was caught because" of confusion. His plea was that when he heard the chasers shouting "thief, thief" he also joined them but in confusion he was caught as the person chased though he was himself one of the chasers. He also gave some explanations for bloodstains in his Pyjama and for his having only two socks in his feet without any shoe at the time he was caught and further that after he was wrongly caught by the public he was assaulted which resulted in bleeding injuries and blood oozed out from his nose staining his cloth. As to the shoeless socks on his feet he has said that he had on his feet rubber sandals which were lost somewhere during the chase. The defence of the other three accused with which we are not directly concerned With was in substance that they were falsely implicated by reason of rivalry with the complainant party who tutored the deceased and the witnesses to name them as the assailants and it may be added 'that while the three other accused were man of some influence in ‑the town, the appellant Maina Mia is an obscure stranger and it appears from the penultimate lines of the learned Sessions Judge that those three accused had sufficient motive for the murder; while the present appellant Maina Mia had none and from the side of the other three accused there was a suggestion that the deceased was a man of bad character, drunkard and a black‑marketeer having many enemies and frequently visiting prostitutes: Mr. Mirza, the learned Counsel appearing for the appellant has taken us through the judgment and the entire evidence and records. His arguments are mainly founded on grounds Nos. 2, 3, 5, 6, 8 and 9 of the memorandum of appeal which are to the following effect :‑

For that the learned Sessions Judge having disbelieved the dying declaration and the witnesses on the point that the three other accused inflicted injuries upon the deceased should have found the whole case to be false and should have acquitted the present appellant also. For that the learned Sessions Judge has erred in law in not considering that the appellant had no motive to inflict injuries on the deceased Dadhu Mia and that the prosecution story being not that the appellant was a hired assailant, the learned Sessions Judge should not have imported the theory of his being a hired assassin. For that the learned Sessions Judge has not at all considered the fact that a hired assassin could not have shirt, pyjama, sweater and shoes and socks on his person which proved that he was coming after seeing the cinema. For that the learned Sessions Judge should have excepted the defence version that the chasers after arresting the appellant assaulted him causing injuries on his person as a result of which his shirt and pyjama were bloodstained. For that in the absence of any direct evidence that the accused had inflicted any injury on the deceased, the learned Sessions Judge should not have convicted the appellant Maina Mia as admittedly there were other persons who committed the offence. Mr. Mirza has finally argued that this is a case of purely circumstantial evidence and the circumstances as brought forward by the prosecution are not incompatible with the innocence of the accused and that the circumstances are not such as ‑can rule out any hypothesis other than that of the guilt of the appellant. We will now discuss the evidence in the case. P. W. 1 is the complainant Yusuf Khan. He has stated that the deceased Dadhu Mia was his Mamashashur and that Dadhu Mian was murdered on the night of the 29th of Kartick, 1370 B. S. corresponding to 16th of November 1963, in Kapuriapatti of the town. The occurrence took place at about 10‑15 p.m. The witness has a jewellery shop in Kapuriapatti and when he was about to retire for the night he heard a cry "save me" "save me". He came out and his neighbour P. W. 8 Matiur Rahman also followed suit with him shouting "thief, thief". He found :‑ " . . a scuffle between Dadhu and one man ; Dadhu was found injured and the other man ran away eastward." This witness saw the incident in the light of P. W. 8 Matiur Rahman's shop the door of which was also open; there was also a street light. He removed Dadhu Mia in injured condition to his shop and when he asked him about the incident, the dying man told him that the man who had just escaped and another man named Shiraj Majumdar had assaulted him with a dagger. He at once sent him to the hospital by a rickshaw ; raised Suraj Mia from his sleep and accompanied by him went to the spot and then to the hospital where the injured was already sent. Thereafter he came to the thana and lodged in F. I. R. Exh.

1. At the spot which he and Suraj Mia visited before going to the thane, he found one dagger, one shoe, one torch light and a cigarette case. He also found ground stained with blood and also a cycle of Dadhu Mia lying on the spot. He did not pursue the fleeing assailant and when he left for the hospital and thane, one constable named Abu Sayed P. W. 11 brought the fleeing man named Maina Mia under arrest. The man hails from Sylhet and works under one Raushan Ali contractor. In cross‑examination, this witness has given the topography of the area which shows that the Cinema hall is very closeby to the place of occurrence. In cross‑examination on behalf of Maina Mia the appellant, this witness stated that he did not know him from before the incident nor did he see him even and that he now heard that he hails from Sylhet and that he did not know if he got acquaintance with any of the accused. He has also stated that when he went to bring Suruj Mia before leaving for the hospital, the constable brought Maina the appellant to his shop under arrest and he did not know if there was any enmity between him and the deceased Dadhu Mia. There was also a suggestion to this witness to the effect that Dadhu Mia the deceased was a dacoit, drunkard and black-?marketer having many enemies and the reply of the witness was that he could not say. P. W. 2 is Gouranga Chandra De who has stated that he has got a Batasha preparing shop in Kapuriapatti standing on the northern side of the Trunk Road and that he knew P. W. 1 Yusuf Khan whose shop lay on the southern side of the road. The Kalibari was 5/6 cubits off from his shop. On the relevant date at about 9‑30 p.m. the public raised alarms, "thief, thief" chasing a man who entered the Kalibari. He also went to the Kalibari and found the appellant Maina Mia being caught by a constable. He had a Pyjama and there was blood stains therein. He had only one shoe in a leg; he had, however, socks in both the legs. At that time people from the west were coming and shouting that a man had run away towards this side after stabbing another. In cross‑examination he has stated that constable Abu Sayed P. W. 11 caught him first inside the Kalibari ; 400/500 men then assembled in the Kailbari while the police held him. People wanted to beat him but the police did not allow the beating. He denied the fact of beating and also that any blood oozed out as a result of the beating. He also stated that people who came from the west shouted that this man has escaped after stabbing ; while the other people who chased them raised the alarm as "thief, thief". This witness further said in cross‑examination that the first show of the nearby cinema was already over ; thus there were many people on the road. P. W. 3 is Kanu Mia, a vegetable dealer in Rajganj having a shop there. He has stated that on the relevant night he was taking tea at about 9‑30 p.m. in the shop of Ahmed Mia when some people chased a man shouting "'thief, thief". He also joined the chasers and found a man being caught by the constable and he stated that this was the person. His pyjama was found stained with blood. In cross‑examination he stated that he did not hear about the stabbing before he was brought to the jewellery shop. He did not see or know him from before the occurrence. When he was arrested, some people coming from the western side shouted that this man had run away after murder. P. W. 4 is Ayub Ali owning a tea stall in Kapuriapatti situate 200 cubits east of Yusuf's shop. At about 9‑30 p.m. he heard people chasing a man and shouting "thief, thief", at the man who was entering the Kalibari. He stated that :‑‑

"Kalibari is 70/80 N/E of my shop." He heard many people shouting that in that very place another man had been stabbed and he identified the appellant Maina as the man chased and arrested on the Kalibari. This witness in cross‑examination admitted that people assaulted the appellant although he observed it from a distance. He, however, did not see blood oozing out from his body. P. W. 5 is Mr. S. A. Malek, Medical Officer now at Police Hospital at Dacca and at the relevant time he was Assistant Surgeon attached to Comilla Sadar Hospital. He stated that on 17‑11‑63, he held post‑mortem examination on the dead body of Dadhu Mia and found the following injuries on his person:. "(1) One punctured wound 3' x 1' abdominal cavity in the right lumber region lateral border where about 1/5 of the intestine is out. (2) One punctured wound 2?'' x 1'' inside of the abdomen in the left lumber region where the omentum is found already out. (3) One incised injury in the vault of the skull 8' x ?'' deep in the right parital region. (4) On dissection small intestine found punctured in three points where the abdomen were full of tissues. Right and left kidney badly injured by penetrating injury from where haemorrhage took place. Fracture on the right parietal bone." In his opinion as stated before, cause of death was haemorrhage as a result of the injuries which were ante‑mortem and homicidal in nature and his opinion was also that those injuries could be caused by any stabbing weapon such as dagger. P. W. 6 Mr. S. M. Rahman was S. D. O. (South) Comilla at the relevant time. At about 1 a.m. at night on receipt of a telephonic message of stabbing case and for recording dying declaration, he went to the hospital and found Dadhu Mia lying in serious condition. He stated that he recorded the dying declaration in presence of the male nurse on duty and others. P. W. 7 is Bhola Mia, a rickshaw puller in the town. He stated that at about 9‑30 p.m. of 29th of Kartick, 1370 B. S. he saw a crowd in the Kapuriapatti and went there and found one injured person lying with bleeding injury, he and Bachu removed him in his rickshaw to the Sadar Hospital. P. W. 8 Matiur Rahman is the main witness of the prosecution. He has stated that he was a tailor in Kapuriapatti in the shop of Syed Ijjatullah at the relevant time which is a part of the complainant's jewellery shop building. The incident took place on the relevant night at 10 p.m. There was electric light in his shop and there was street light also. He saw a man riding on cycle being attacked by two persons at a place which is 8 to 10 cubits off from his verandah in which he sat at the time. The assailants threw him off the cycle and a scuffle ensued between the victim and the assailants. As such things in the present place which is near the wine shop usually happen, be did not proceed. He heard the cry "save" "save" of the victim who held one assailant by the leg but the latter extricated himself and ran towards the east. On hearing the cry, P. W. 1 Yusuf Khan came out of his shop and he uttered "catch" "catch" as the escaping man ran towards the east but did not pursue him. "Within a few minutes (2/3 minutes) the man who ran eastward was brought under arrest. He had only one shoe and two socks in his leg ; one shoe was left on the spot before he escaped eastward. He had a shirt and sweater on his person. There was bloodstain in his `pyjama' . . . . . . On the spot a bloodstained dagger, one T. L. one shoe and a cycle were found." In cross‑examination he stated that the street light was 50 to .60 cubits west of the place of occurrence ; another post was about 150 cubits east from the place of occurrence and also that he did not know Maina before the incident. He also denied Maina having been assaulted by anybody. With regard to the shoe which was found on the spot he stated :‑ "I can identify this shoe by reference to its lace. I did not mark if it got any other characteristics." P. W. 9 is Ijjatullah, owner of a cloth store in Kapuriapatti who has only stated that P. W. 8 Matiur Rahman was his tailor who narrated the incident to him in the morning. P. W. is Milan Mia who has stated that the deceased Dadhu Mia was his Bhagnipati and that his sister was the second wife of the deceased and that he went to the hospital on hearing the news of stabbing of the deceased and met him there and he was also present at the time of the dying declaration and at the time of the lodging of F. I. R. P. W. 11 is Abu Sayed the constable who claims to have caught the appellant Maina at the Kalibari. He has stated that at about 10 p.m. he was returning from Amudia Hotel where he usually takes his meals and he was coming westward through Kapuriappati. At this time he found a man being chased from the west side by some members of the public. He asked the man to stop whereupon he entered the Kalibari on the north side of the road. He chased him and got him inside the Kalibari. The people who had been chasing him shouted that he just escaped after stabbing another person. He brought him under the street lamp post and found bloodstain in his Pyjama. He also found only one shoe in his leg and socks in both of his legs. He also added that he was sure that the appellant had socks in both of his feet but as to the shoe he could not recollect now. He also found one dagger stained with blood and other articles. He heard from‑the people that Dadhu Mia had been stabbed a little while ago and that he was sent to hospital and stated that the man in the dock was the man whom he caught and brought to the thana and that he had his two socks still in his feet when he produced him to the thana. In cross‑examination he stated that he had no police uniform then and that the people who were chasing the accused were shouting as "thief, thief"; that there was no light in the Kalibari and that he :‑ ? " . . caught him first of all; others then caught and held him besides me." P. W. 12 is Fazlur Rahman constable who accompanied the Town Sub‑Inspector of Police to the Sadar Hospital and stated that the T. S. I. held an inquest on the dead body and made it over to him for carrying it to the morgue. P. W. 13 is Nurul Islam, Sub‑Inspector of Police on proba?tion attached to the Kotwah Police Station. He stated'that on the relevant date at about 10‑30 p.m., P. W. 11 Abu Sayed produced before him in the thana one person named Maina Mia along with one bloodstained knife, one torch light, one black shoe, one cigarette case. On the person of the accused Maina he found bloodstained shirt and one blood stained pyjama and one pair of socks. In cross‑examination he stated that the accused did not make any complaint of ill‑treatment and that it was not a fact that there was mark of injury on his person. P. W. 14 is Abdul Jabbar, younger brother of the deceased. What he has stated relates mostly to the other accused. P. W. 15 is Makbul Mia who stated that he is a C. I. D. informer residing in the town who got rewarded in cases of correct information given by him. On the relevant night he was returning from Chandina at about 9‑45 p.m. or 10 p.m. and came to Rajganj Bazar on foot. Halim met him at Rajganj and both of them started eastward. When they came near the wine shop they found a man passing by on a cycle and immediately he heard a cry "save" "save" and they found three men escaping towards the north and one man escaping towards the east and that they chased the man who was escaping towards the east and that the man entered the Kalibari where he was caught by the constable Abu Sayed. P. W. 16 is Abdul Halim, a mason of the town. He stated that at about 10 p.m. he joined P. W. 15 in Rajganj and proceeded towards the east on foot. A cyclist passed them by proceeding eastward. Immediately they heard the cry "save" "save" and saw one man running away towards the east while two men running away towards the north. They saw them escaping from a distance of 20 to 22 cubits and that they chased the man in the east who was caught in the Kalibari. P. W. 17 is Abdul Jalil, Chairman, T. C. No. 4, Comilla who went to the hospital and found the injured man and telephoned to the S. D. O. to come and record the dying declaration. P. W. 18 is Md. Hamid Ali, Footprint Expert attached to C. I. D., East Pakistan Dacca. He stated that he received :‑ "(1) One questioned black shoe of right leg (seized by the Investigating Officer in connection with the case) marked as A. (2) Two sample ink‑impression of right and left foot said to be of suspect Maina Mia‑marked as B and C respectively." He got prepared the photograph of the impressions found on the inner sole of the black shoe "A". He examined and compared the impressions found on the inner sole of the shoe in the same ink‑impression of right foot B and found the following similarities in them. "The length and the breadth at the pad and the hill of A tally with those of B with each other in measurement ; being 9'4 inches, 3'4 inches and 2'2 inches respectively. "The distribution of the toes and their relative positions, formations, shape and size found in A tally with those of B." "Considering these above similarities, I am of opinion that the print found in the shoe A and the sample ink‑impression B are in all probability of one and the same foot." In cross‑examination he stated that the shoes of these nature were available in the market and that footprint training is a science which was progressing and was not imperfect. He also stated that age of the impression in the sole cannot be determined and that no sock was sent to him for examination. In reply to Court he stated that if a man starts wearing sock from the very beginning of his shoes and never uses the shoes without socks, then there can hardly be any impression but if he sometimes uses the shoe without socks the impression with fall and remain in the sole and subsequent use of sock will not cause the disappearance of the impression. Foot impressions will fall on the sock as well but these will disappear as soon as the sock is washed. P. W. 19 is Kazi Serajul Huq who stated that he has got an export import business in the town and that on the relevant night and at the relevant time he was in the road in front of the Rupali Cinema At that time he found a group of people coming out of the Kalibari which was 60 to 70 cubits from his house. He came there and found one man being escorted under arrest by a constable while the surrounding people were trying to assault the man under arrest. The constable was preventing the people from assaulting and he also asked them not to assault him since he was already under arrest in a murder case. He identified the man as the appellant. He also slated that the man arrested had a Pyjama and as to shirt and Ganzi he was not sure. There was bloodstain in the Pyjama and he bad socks in both the feet. In cross‑examination he stated that he never saw the appellant before this incident and also stated that there was no assault upon him though be admitted that people wanted to assault him. P. W. 20 is Abul Asad Sadequr Rahman. He stated that he was a male nurse. in the Sadar Hospital. On 16‑11‑65 a patient named Dadhu Mia was admitted in the hospital in injured condition at about 11 p.m. and he attended him till he expired in the later part of the night and that the S. D. O. recorded a dying declaration in his presence. With what he stated in cross‑examination, we are not concerned as that relates to other accused. P. W. 21 is Anwar Hussain, T. S. I. of Kotwali Police Station at the relevant time. He stated that he visited the hospital on an information and pending arrival of the S. D. O., he recorded a dying declaration of the man. He also held inquest upon the dead body. P. W. 22 is Nurul Huq Chowdhury, Sub‑Inspector of Police who stated that the F. I. R. Exh. I was recorded by P. W. 13, a probationer under him and under his supervision as he had pain in his arm he had asked the probationer to do the job. He investigated into the case, seized some bloodstained earth, prepared a sketch map, examined witnesses and made over charge of the case to C.

1. Refizalla of Sadar Circle. P. W. 23 is Hafizullah, Circle Inspector of Police. He stated that he took up investigation from P. W. 22 on 28‑12‑63 with all connected materials. He visited the place of occurrence, examined and re‑examined some witnesses, took the specimen footprints of the appellant in presence of Mr. K. S. M. S. Huq, Magistrate, First Class on 15‑1‑64 in two sheets Exhs. 5 and 6, which bore signatures of the Magistrate which he knew ; he also put his signature thereto, and sent the same to the expert and got them back along with his opinion. The above is all the evidence of the P. Ws. in the case. The circumstances relied upon ‑by the prosecution are those of :‑-- (1) The arrest of the appellant Maina after a short chase in a place about 400 cubits from the place of occurrence. (2) Presence of bloodstains on his trousers. (3) His cadaverous and comical look having socks on his feet but no shoe. (4) His failure to take the defence of mistaken identity at the earliest stage when he was caught. The defence not having challenged the place, time and manner of the occurrence, the result of the case depends entirely upon the scrutiny of the circumstances brought forward by the prosecution. The learned Deputy Legal Remembrancer had to concede that there is no direct evidence of the stabbing itself by the appellant Maina although the evidence is there of the scuffle and of the present appellant escaping eastward immediately thereafter towards the Kalibari after extricating himself from the clutches of the victim. He has referred to the evidence of P. Ws. 1 and 8 on this point which we have mentioned already. P. W. 1 has said that he saw the scuffle between the deceased and one man; while P. W. 8 stated that the scuffle was between the deceased and his assailants, which means more than one assailant. Both said that one man ran eastward but strangely enough none of them joined in the chase. P. W. 1 did not see the man after he was caught nor did he claim to recognise him not having seen him before. "I did not know him before this incident nor did I see him even." So far as P. W. 8 is concerned, he saw the man also after arrest. He 'has stated that the man who ran eastward was brought under arrest; he had only one shoe; two socks were on his legs and one shoe was left on the spot before he left eastward; he had a Pyjama, a shirt and sweater on his person. It is not clear as to when he actually saw these apparels on the person of the accused; whether it was at the time of the scuffle or at the time when he was brought back after arrest. Although he says That he saw blood marks on the Pyjama, yet he did not claim to have seen any blood marks on the shirt nor could he have seen' so , as according to him there was a sweater upon him. No sweater was seized from his person and the prosecution has not offered any explanation as to where it went. If there was a sweater there would have been blood marks upon it and the blood marks on the shirt as found must have filtered through the sweater. In those circumstances Mr. Mirza has rightly contended that the accused is entitled to the benefit of the presumption that if the sweater was produced the case would have gone against the prosecution. This witness has not mentioned any distinguishing feature of the‑man who ran eastwards and it may be contended that he was speaking from impression that this was the man having regard to the fact that he was the man caught from the east soon after. His evidence, at any rate, is not positive enough; He has not said that this is the man whose leg was caught by Dadhu Mia and who after extricating himself, ran towards the east. This witness stated in cross‑examination that the street light was 50/60 cubits away on one side and nearly 150 cubits away on the other though he has also said that there was also some light emanating from his own shop. For a tailor shop to have light with fall glare at that hour of night would be rather unusual and if there was any light at that hour, it may be very faint kind of light. The placing of the light posts is indicative of the fact that the visibility of the spot could not be very clear and besides the light amanating from the shop would not directly fall upon the place of occurrence as the place of occurrence was not in a straight line from the shop itself. According to this witness, the appellant had one shoe on his foot and another was found lying on the spot. If this evidence of his is accepted, the question arises as to what had happened to the other shoe and why all the trouble of toe footprint expert undertaken by the prosecution for fitting the `deserted lone shot as found on the spot or the right foot of the appellant. The two shoes could be paired and those could speak for themselves. What is more, this shoe found on the spot which we have seen for ourselves is a rather expensive type of shoe for a man of the appellant's position though rather old with rubber sole of good brand and it is not an ordinary shoe of the common brand with laces. It is a shoe with one strap and buckle on the opposite side as fastener, while this witness P. W. 8 has stated that he could identify this shoe by reference to its lace and that he did not mark if it got any other characteristics. That shoe being not of one ordinary type, its characteristics are noticeable and what is more, the shoe has no lace at all so that the witness could not have identified it by its lace as claimed by him. Moreover the opinion of the footprint expert who is also incidentally a finger‑print expert, is not very much acceptable having regard to the fact that the marks made inside could be rubbed off by the friction of the cotton socks. The markings created on the socks by the pressure of the feet could have given better clue if those were compared with the markings inside, the shoe. In ultimate analysis, his evidence did not go beyond proving that the shoe fitted the right leg generally. The appellant in his examination at the trial has stated:‑

"It is fact that I had sockings on my feet because I had sandals on my feet before this, which fell somewhere while I was running. I had no shoe on my one foot." In those circumstances, we do not feel that the shoe as presented by the prosecution, very much helps the prosecution case. P. W. 8 Matiur Rahman's further story is that the man extricated himself after some struggle. Having regard to the nature of the injuries as disclosed by the Medical Officer, there must have been profuse bleeding and it is rather queer that there is only a few specks of blood on the garments and no patches. There is evidence that blood was profuse enough to fall even on the street. It is true that the appellant Maina did not account for the blood on his garments at the earliest. Even in his examination under section 342 of the Code of Criminal Procedure in the Committing Court he offered no explanation. But then the examination in the Committing Court was simply :‑

`Q.‑You have heard the prosecution evidence regarding the charge that on 16‑11‑63 in the night you in collusion with other accused persons killed deceased Dadu Miah by inflicting knife blows at Comilla Kapuriapatti. What is your defence? Will you adduce evidence in defence? Ans.‑I shall say at the Sessions (Court) whatever I have got to say." So that he was not asked anything about the blood marks in the committing Court, and he stated that whatever defence he had he would say it in the Court of Sessions. It is true that P. W. 13 Nurul Islam in cross‑examination stated that he asked the accused but he did not make any complaint of ill‑treatment and that it was not a fact that there was mark of injury in his person but he did not send him to the hospital. In his examination at the trial under section 342 of the Code of Criminal Procedure, the appellant Maina stated that there was bleeding from his nose as a result of fist-cuffs and blows by the persons causing his body and trouser, etc. besmeared with blood and he also stated that the Daroga Shaheb neither paid any heed to his statement nor wanted to see his injuries because he was a stranger. P. W. 4 Ayub Ali stated in cross‑examination:

"People assaulted him as I observed from a distance." although he said that he also did not see blood oozing out from his body. Fist-cuffs and blows in such circumstances by the mob are not infrequent. He also stated in his examination-in-chief that on hearing the cry "thief, thief", he joined the crowd but they mistakenly caught hold of him and began to assault him and that he along with the persons entered the Kalibari to catch thief. Admittedly many persons chased the appellant Maina, P. W.. 11 Abu Sayed stated that the people who were chasing him were shouting as "thief, thief". There was no light in the Kalibari ; that he caught him first of all, others then caught and held him besides him. This constable P. W. 11 Abu Sayed had no uniform on him so that he could not have in the ordinary course prevented the assaults upon the man arrested. There is also evidence of P. W. 2 that 400 to 500 men assembled in the Kalibari while the police held him ; that people wanted to beat him but the police did not allow to beat him. It would be too much to expect a plain clothes policeman who has nothing to show his official position, to be in a position to ward off the fury of the infuriated men. It may be mentioned here that the garments which were alleged to bear the marks of blood, were not sent for chemical examination not even the socks‑not even the bloodstained knife which was likely to bear the finger print of the assailant being red with blood. P. Ws. 2 and 3 who among others joined the chase only stated that this appellant Maina was the man caught by the police. They only heard people shouting that this man, meaning the man arrested, was the man who escaped after stabbing. None of the shouters was produced before the Court. They did not themselves see the starting point of the race run by the fleeing appellant nor did they for themselves have any idea of the back?ground of the race except conjecture to the effect that he must have been man who caused the fatal injury to the deceased. The examination‑in‑chief of P. W. 2 shows that he stated‑ "At that time people from the west were coming and shouting that a man had run away towards this side after stabbing another." In cross‑examination, however, he made an improvement when he stated‑

"The people who came from the west shouted that this man has escaped after stabbing." So "a man" as was stated by him in his examination‑in‑chief, has become "this man" in the cross‑examination. The evidence of P. W. 3 also shows improvement in the same fashion in the cross‑examination. It cannot in those circumstances be held that the circumstances brought forward by the prosecution are sure enough. The learned Deputy Legal Remembrancer has laid great stress upon the proximity of time, that is, the arrest of the appellant immediately after the occurrence under the circum?stances which, according to him, are clearly incriminating. This proximity of time and the circumstances as disclosed by the prosecution lose much of their force in the face of certain absent circumstances so far as the prosecution goes, namely, that of the appellant with, any` other accused or any enemy of the deceased far from being in a position to place him in the category of a hired assassin as opined by the learned Sessions Judge. He has neither any connection with the deceased and is a stranger in the town unknown even to the witnesses. Furthermore, admittedly there is complete absence of any motive. The learned counsel for the appellant has cited certain rulings in support of his contentions showing the danger in convicting a person on the basis of circumstantial evidence of the present nature. It is not necessary for us to mention all these cases except the one namely, that of Raghunandan Koeri v. Emperor (22 Cr. L J 154), a Divisional Bench decision of the Patna High Court Sultan Ahmed, J. delivering the judgment. It was observed in this case that the fundamental rule by which circumstantial evidence is estimated, is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than that of his guilt. Further that although it cannot be laid down as the proposition of law that quantum or value of evidence must depend upon the enormity of the crime, yet it is safer to follow the established rule that "the fouler the crime is, the clearer and the plainer the proof ought to be" Sultan Ahmed, J. got this portion within quotation on the authority of eminent Judges like Sir Mathew Hale, Lord Cockburn, Lord Chancellor Nottingham and Mr. Baron Legge. The facts of this case show that there was some motive and the assailant was seen running and there was also scratch marks found on his person. There is also the evidence that he tried to throw her the deceased‑in the well before. Even than the learned Judge observed that even if he accepted the evidence that the assailant was running he could not accept the position that the accused committed the murder inside the house. One other decision cited by the learned counsel for the appellant may be mentioned, namely, the case of Pir Hasan Din v. Emperor (A I R 1943 Lah. 56) as wherein it was observed inter alia to the effect that in cases where the evidence is wholly circumstantial, the rule is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Where in a murder case as in that case the evidence against the accused was wholly circumstantial and all that was proved was that the bullet found inside the body of the deceased was fired from the pistol subsequently recovered in con?sequence of the information given by the accused, the conviction of the accused under section 302 of the Penal Code, could not be sustained as other hypothesis consistent with the innocence of the accused were reasonably possible. It was further observed that there was subtle but fundamental distinction between the degree of certainty required in cases where the burden of proving a fact is on the prosecution and those where the burden of proof is on the accused. When the burden of proof is on the prosecution, the case must be proved beyond any reasonable doubt. Where, how?ever, the burden of an issue is on the accused, he is not required to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient for him if he succeeds in proving a prima facie case. Having scrutinised the circumstances of our present case carefully as above, we do not feel convinced that the circumstances are such as can be regarded as incompatible with the innocence of the appellant or that those circumstances negative any hypothesis other than that of the guilt of the appellant. In that view of the matter, the appellant Maina is entitled to the benefit of doubt. In the result, we allow the appeal and set aside the conviction and sentence of the appellant Maina Mia and we acquit him. The reference is rejected. The appellant is directed to be set at liberty forthwith if not wanted in any other connection. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. ????????????????????????????????????????????????????????????????????????????????? Appeal accepted.