JUDGMENT Piggott, J.
1. On the 3rd of December last, somewhere about 2 o'clock in the day, a young Bengali, Surendra Nath Mukherji, whose age is given in the record as 22 years but who according to his father's evidence was not yet quite 20 years of age, presented himself at the Kotwali Police Station at Allahabad and made a certain report, a record of which was entered in the Police register provided for the purpose. In consequence of this report the City Inspeotor, Muhammad Said, proceeded at once to the house in the city in which the said Surendra Nath Mukherji was living. He found the door leading into the inner apartments locked and it was opened, with a key produced from his person by the above mentioned accused. The latter then led the way to a certain room on the north-east side of the courtyard which was fastened on the outside by a chain. He unchained this door and led the Police Officer and certain witnesses, one of whom, Bande Husain Khan has been called at the trial, into the room. On the floor was lying the corpse of a young girl named Sunilabala Debi, wife of Surendra Nath Mukherji aforesaid. As to the age of this girl there is some little conflict of evidence, but we shall not be far wrong if we take it to have been about 15 years. She was quite dead and was wearing only a bodice and a loin cloth. Some part of this loin-cloth was in some way drawn together or heaped up under the back of the neck. There was a slight cut or incision on the great toe of each of the feet, and with reference to these the accused made a statement and produced from a recess in the same room an implement with which he said those incisions had been made. The corpse was subsequently examined by Mr. Kashi Nath, Assistant to the Civil Surgeon of Allahabad. With regard to the incisions above spoken of Mr. Kashi Nath was quite satisfied that they had been inflicted after death, and this is in accordance with the statement to which the accused himself has adhered throughout. The only other external mark of injury was a slight redness of the skin on the left side of the neck. This was evidently a mere patch, described in the Assistant Surgeon's evidence as 1|- inch long into f inch broad. A further examination of the corpse disclosed that death was almost certainly due to asphyxiation, but beyond this the Assistant Surgeon was not prepared to go. He was asked a number of questions as? to the" possibility of death by strangulation or death by suffocation and as to the presence or absence of indications tending to prove that this suffocation, or strangulation, or whatever it was, had been in its nature either homicidal or suicidal. The general effect of his evidence seems to me to be to leave these questions absolutely open. In one portion of his evidence the Assistant Surgeon seemed to incline towards the belief that death had been caused by suffocation rather than by strangulation, though he admitted himself to be puzzled by the absence of any marks of external injury about the mouth or nose. At the very end of his examination after he had protested that he was unable to give any decisive answer on the question of strangulation or suffocation, he told the Court that on the whole strangulation by means of a soft cloth seemed to him more in conformity with the 'post mortem appearances than any other theory. This is in itself an opinion' expressed with much doubt and reserve; it is not altogether consistent with other portions of the evidence given by the same witness. It is difficult to understand how, on the theory of strangulation effected in this manner, the only mark left upon the neck should have been the small red patch already referred to. On the evidence, moreover, it would seem that what is ordinarily the most characteristic symptom of death by strangulation, namely, the protruded tongue, was entirely absent. Surendra Nath Mukherji was eventually put on his trial on the charge that he had murdered his wife. Of the Assessors who heard the evidence one finds him guilty and the other not guilty. The learned Sessions Judge, finds him guilty and has passed sentence of death. The record is before ns for confirmation of that sentence and we have had the advantage of hearing the petition of appeal presented on behalf of the convict argued by Mr. Ross Alston. The evidence on the record is admittedly most scanty. At the very outset of the trial a question arose as to the admissibility in evidence of the statement recorded at the Kotwali Police Station at 2-30 p.m. on December the 3rd. The learned Sessions Judge was at first disposed to reject that statement as inadmissible by reason of the provisions of Section 25 of the Indian Evidence Act. Later on, upon further consideration of the provisions of Section 27 of the same Act, he has allowed it to be put in evidence. I have no doubt that the provisions of both these sections apply to the circumstances stated and require to be considered. A mere statement in evidence by the City Kotwal that the accused came to the Police Station and made a report, in consequence of which the corpse of his wife was discovered in an inner room of his residential house, would be calculated to work unfairly from the point of view of the prosecution and from that of the defence; Section 27 of the Indian Evidence Act was no doubt introduced on purpose to obviate the possibility of such unfairness. Under that section the City Kotwal was unquestionably entitled to depose that Surendra Nath Mukherji came to him at the time and place stated and said: ' I have killed my wife, her corpse is lying in my house," and that inconsequence of this statement the woman's corpse was discovered as indicated by the accused. Now when once this much had been deposed to OH behalf of the prosecution, the defence were clearly entitled to require the production of the record made at the time at the Kotwali Police Station and to insist upon the proof of the whole of that record if they thought it advisable to do so. I think that the statement should have been put in evidence in this manner at the request of the defence; but as the case stands, I see no reason to object to its appearance on the record and I find it necessary to consider it in some detail. According to this statement the accused Reported that his wife had been seriously misconducting herself for sometime past and that she had been carrying on an illicit correspondence with another man. For this reason, the statement says, the accused made up his mind to kill her. He arranged that he should be alone with her in the house at about noon on the day in question. He had spent the night in remonstrating with her, and continued to do so; but her only reply was, "leave me alone: I want to go away." Thereupon the accused tied her loin cloth round her neck and killed her, after which he inflicted the two incisions on the great toes already spoken of. With regard to these the explanation given in the statement is that the accused had heard that persons, strangled by means of a piece of cloth would come to life again.
2. On the following day, the 4th of December 1917, the accused, having spent the night in Police custody, was placed before a Magistrate of the First Class, to whom he made a confession. We have before us the record of that confession and also the evidence of Mr. S.E. Anthony, the Magistrate who took it.
3. According to Mr. Anthony, as soon as he, began to question the accused and before he had even completed the preliminary questions which a Magistrate always puts in these cases, the accused interrupted him by saying: "I have killed my wife." The confession itself adds very little to this bald statement. It repeats the allegation of unchastity against the girl in general terms, and adds that the accused had obtained possession of letters written by her to some other man. For this reason, he says, he murdered her by strangling her with the dhoti she was wearing. After the enquiry preliminary to commitment the accused was again examined by the same Magistrate on the 21st of December 1917. He then declined to answer most of the questions put to him and claimed his right to reserve his defence for the Sessions trial. To the Sessions Judge the accused said that he had gone out on the morning of December the 3rd and returned about 11 o'clock, to find, the house door shut and no answer returned to his knocks. He then climbed over one of the walls and, in the closed room already spoken of, found his wife lying dead with bar own loin cloth tied round the neck. He unfastened the cloth and, in the attempt to discover whether life was quite extinct, inflected the outs on the toes which have already been: referred to. He came out of the house, locking the door behind him and told one Tarak Nath Mukherji, a telegraph signaller, what had happened. On the advice of the latter he first sent a telegram summoning his own father, who was in Calcutta at the time, and then went to the Police Station intending to report that his wife had committed suicide. He alleged that, somewhere inside the Polios Station, before he went upstairs to the room where the City Inspector Mohammad Said was sitting, he entered into conversation with some subordinate Police clerk, who strongly advised him not to report that his wife had committed suicide but to say that be had killed her out of jealousy on account of her misconduct. He says this Munshi gave him far-(her reasons for adopting this course. and that, after he had gone upstairs, the City Kotwal also urged him not to be afraid, but to say that he killed the woman and that he would get off all right. He ascribed l>is subsequent confession to the Magistrate to Police influence. He now denied having killed the girl, asserting that he was very much in love with her. He said, further, that she had attempted to commit suicide on other occasions. The defence evidence was" mostly directed to this point; but the telegraph signaller Tarak Nath Mukherji confirmed the accused's statement so far as it concerned him. Two physician?, Dr. Nogendra Nath Datt and Nanak Prasad Varna, a homoeopathic practitioner, gave evidence that they had attended the girl on two different occasion a after what appeared to be attempts on her part to commit suicide by poisoning. Evidence was also given of an occasion on which it was said the accused's wife had left her house declaring her intention of drowning herself in the Jumna river. The evidence of the accused's father, Benod Behari Mukherji, and of a neighbour, Nimai Charan Mukherji, suggests further that the girl was of a wilful and hysterical temperament, that she would resort to'- hunger-striking and t) beating her head en the ground if her will was crossed in any way, I have set oat the evidence for the defence in the first instance because there is really no further evidence for the prosecution beyond that already indicated. A younger brother of the accused's was called, but he gave 60,evidence particularly relevant to the case, except that in cross-examination he supported the allegation for the defence as to previous attempts to commit suicide. The record before us suggests that the prosecution intended in the first instance to pro-dace certain further evidence, and more particularly that witnesses who were present at the discovery of the corpse were to be examined as to statements made by the accused at that time and as to a certain pantomime gone through by him, in illustration of the manner in which he had compassed his wife's death. It is not dear whether this part of the prosecution case was dropped because those responsible for the conduct of the case were satisfied that there was no substance in it, or because it was supposed that evidence of this nature could not be given without contravening the provisions of Section 26 of the Indian Evidence Act. The evidence is certainly not before us and I only allude to it because of this latter possibility. I think that the witnesses were entitled to depose to any actions performed by the accused in their presence and, after they had done so, the defence would have been entitled under other provisions of the Indian Evidence Act to put questions (if they deemed it advisable) as to any words used by the accused which accompanied or explained those actions. If any evidence of this sort was available I can only say that, in so difficult a case, I feel some regret that it is not before me.
4. The learned Sessions Judge in finding the accused guilty has proceeded upon a line of reasoning which sounds convincing enough, if all the premises assumed by the learned Sessions Judge are granted. He takes it that the case must necessarily have been either one of suicide or one of wilful murder. He comes to the conclusion that the evidence as a whole and more particularly the statement of the Assistant to the Civil Surgeon, considered along with appropriate passages in certain medical treatises to which the Court was entitled to refer under the proviso to Section 60 of the Indian Evidence Act, practically excluded the possibility of suicide-Holding, therefore, that the fact of murder is established beyond question, the learned Sessions Judge finds that, even apart from the accused's retracted confession, the circumstances as a whole point to the accused as the only possible murderer. The confession itself, as made before the Magistrate on December the 4th, the learned Sessions Judge evidently regards as clinching the matter.
5. In considering the soundness of the conclusion thus arrived at, I wish to take up first two questions of detail. The whole of the evidence for the defence has been swept aside by the learned Sessions Judge on what appear to me quite inadequate grounds. It is true that most of the persons concerned are relatives, caste fellows or friends of the accused although it is not clear that these remarks apply to the physician Nanak Prasad Varma. The matters to which these witnesses were required to depose were matters which could only have been within the knowledge of relatives or close friends of the family. It is not logical to put aside evidence of this sort, merely on the ground that the persons giving it have a motive for desiring to befriend the accused person. No doubt, as the learned Sessions Judge remarks, the fact that this unhappy girl had attempted to commit suicide on previous occasions would have but little bearing on this case, if it be indeed proved beyond possibility of doubt that the present case was not one of suicide, Never theless the defence evidence as a whole does suggest to my mind certain conclusions which I regard as established with reasonable certainty. I accept it as proving that this child wife was of a self-willed disposition and hysterical temperament. I think it highly probable that she had on previous occasions, either actually made, or professed to make, some attempt to take her own life. Further than this I do not desire to press the defence evidence, nor do I think it necessary to do so. Now as regards the medical evidence, I feel bound, although with some reluctance, to comment on the absence of certain details which I should have desired to find there. In a case of this sort, where a human life is at stake, no motives of delicacy, however natural or in themselves commendable, can be allowed to interfere for a moment with any attempt to sift out the truth. Speaking on the basis of an experience which goes back for a considerable number of years, and which calls to my mind more than one case analogous to the present in some of its most important features, I take it upon myself to say that in all oases in which the supposed victim of a murder is a young girl, the Medical Officer conducting the post mortem examination should invariably make a thorough and careful examination of the organs of sex. In the present case we have it that the parties had been married for about a year and, according to the evidence, they had been separated for almost six months of that time. It appears not very probable that the medical examination, if directed expressly to this point, would have proved that this unhappy girl was at the time of her death a virgo intacta; but if this had happened to be the case, it would have thrown a most important light upon the consideration of the entire evidence. Even apart from this possibility, it might have disclosed some evidence bearing upon one conceivable view of the case which has been entirely kept out of sight at the trial, but which I think it impossible altogether to overlook.
6. Subject to these preliminary remarks, I now come to close quarters with the main grounds upon which the judgment of the Court below has proceeded. Is it fairly established on the evidence that the present case is either one of suicide or of wilful murder, and moreover is the hypothesis of suicide absolutely excluded by the evidence? It is not a matter about which it is possible to enter into any course of detailed reasoning. The question is as to the inferences to be drawn from the evidence of the Assistant to the Civil Surgeon considered in the light of any standard authorities on medical jurisprudence Speaking for myself I can only say that, on the evidence as it stands, I think that the theory of suicide, although shown to be somewhat improbable, cannot be said to be definitely excluded. I would go further and say that, in the case of a young girl of this age and of such antecedents and temperamept as I believe to be proved by the defence evidence, the possibility of death by accident, or by some undiscovered natural cause, is not altogether excluded. There remains yet another possibility at which I have taken it upon myself to hint in an earlier portion of this judgment. To put the matter bluntly, assuming that this girl met with her death at a moment when she was alone in a certain room with her husband, I should not even then be satisfied that the accused had caused her death by inflicting any ^injury upon her with such guilty intention or such guilty knowledge as would be necessary to support a charge of culpable Komicide. The possibility would remain that he had been resisted in an attempt to exercise his marital rights, resisted perhaps with cries and screams, and in an attempt to stifle those cries he bad used more force that he realized and driven a nervous and hysterical child into death by suffocation, without any intention of producing such a result or knowledge that he was likely to do so. The most curious and exceptional feature of this particular case is to be found in the two outs inflicted upon the feet after death. I am quite unable to believe that a man who had deliberately murdered his wife would inflict these curious post mortem injuries for any such motive as that suggested in the statement taken down at the Allahabad Kotwali. If he merely wished to make sure that his victim was dead, he could have used a cutting implement to better purpose in a great variety of other ways. I feel confident that the explanation subsequently offered by the accused of these injuries is the true one, namely, that he was trying desperately to see whether there was not some life left in the apparently inanimate body. It is at least possible that he suspected the girl was shamming death and intended to put that to the test.
7. This brings me, therefore, to the final question. We are asked to convict this young man of murder, substantially upon a retracted confession and to do this in a case in which, putting that confession on one side, there is not, in my opinion, definite proof that murder has been committed at all. I should feel in any case most reluctant to ' act upon a retracted confession under such circumstances. In this particular case I feel no hesitation in going a good deal further. Parts of the confession in question J definitely disbelieve. I do not believe the reason given in the statement recorded at the Kotwali for the cuts inflicted after death on the feet. I do not believe the imputations on the chastity of the unfortunate girl thrown out either in this statement or in the confession subsequently recorded before the Magistrate. Practically I come back to this. Disbelieving so much of the confession, am I prepared to feel satisfied beyond the possibility of doubt that the accused was speaking the truth when, at the outset of his statement before the Magistrate on December the 4th, he began by saying: "l have killed my wife?" To this my answer is, firstly, that I am not satisfied beyond all doubt that the accused was speaking the truth when he said this. If he had been induced by injudicious advice, no matter from what quarter that advice may have proceeded, to tamper with the truth in other portions of his statement, he may not have been speaking the truth when he uttered these .words. Secondly, as I have already pointed out, I might be prepared to believe that the accused truly said that he bad killed his wife, and yet hold that in doing so he had not committed the offence of murder, or even that of culpable homicide. I am satisfied as the case stands that the conviction and the sentence recorded in the Court below cannot be affirmed and that, on the materials on this record, the appellant cannot be convicted of any lesser offence.
Walsh, J.
8. I agree that this appeal must be allowed. I have formed no theories about the case, but if I had to direct a Jury I should feel myself compelled to tell them, not as a matter of law but as a matter of common sense, that upon the mysterious condition of the evidence in this case it was their duty to give the defendant the benefit of the doubt.
9. As I have said before, and I repeat it because I think it is sound and indeed I think what my brother has said is in accord with it, that when a confession is the only evidence, that is to say, when there is no evidence of the crime except the confession relied upon, you must take the confession as a whole, that is to say, you cannot select, from the only evidence which you are proceeding to act upon in order to find the crime established as a fact at all, portions of it which you reject as untrue, and treat the balance which remains as truthful evidence. This does not seem to me a principle of law so much as a statement of sound reason and logic, and few oases could afford a better illustration of it than the present case. There are two statements in the confession, namely, the adultery by the deceased girl with other men, and the existence of love letters written by her, the first of which is in the highest degree improbable and the second of which is demonstrably untrue; but they are so completely involved in the confession itself as, to my mind, to constitute the confession a piece of testimony which no reasonable man would act upon in the ordinary affairs of life in a business of his own. The Judge has, I think, unfortunately treated this retracted confession, and the explanation given for its original utterance, as being necessarily an attack upon the Police. He says, ' it is no doubt a retracted one but for all that, it is singularly free, from suspicion." He further say?, it was made, in the presence of a Police Officer who is above suspicion in the matter of bringing any pressure to bear upon the accused." In the sense in which the Judge used the words ' free from suspicion, " I agree with him. Where I differ from him, and I think it was a fatal misdirection, is in drawing the inference from that conclusion that the confession itself is necessarily true. It is quite consistent with all the facts of the case, and with the confession itself, that the accused was persuaded to make it voluntarily in his own interest, and was honestly supposed to be doing it in his own interest by the person who prompted him. I am inclined to think that the confession in that sense was quite voluntary and 1 accept the evidence of Mr. S.E. Anthony about it. But it is perfectly consistent with that hypothesis that nonetheless the confession was false, as indeed it has been shown to be to a large extent. There is one unsatisfactory feature about the trial and the way in which the conclusion was arrived at. There is great doubt, even mystery, upon the medical testimony and the appearance of the body, as to how the death was caused at all, In the calendar two witnesses were vouched, and sent up to the trial for the purpose of proving that the accused had illustrated the manner in which death had been caused. It may be, I do not stop for the moment to enquire that it is not open to us now to look at that evidence, but it is part of the history of the prosecution and it is impossible for me to shut my eyes, in a case of this importance, to the fact that either because a doubt existed as to its legitimacy as evidence, or as to its trustworthiness, the point was deliberately abandoned by the prosecution. It is an elementary principle of criminal law, and certainly should be applied in a case of this gravity and difficulty, that the accused is entitled to the benefit of any point, such as this which was essential to the questions which lay at the root of the enquiry, which had been put forward and subsequently abandoned by the prosecution. A further difficulty in the case to which my brother has already referred, and which has been entirely overlooked in the decision of the case, is the bearing upon what really happened of the cuts inflicted on the deceased woman's toes after death.
10. The judgment reads in some particulars like a category of grievances against the accused and his friends. It cannot be too often repeated, because it ought always to be remembered and I think in this case it was forgotten, that there is all the difference between a trial of a criminal case where a man's life is at stake and a civil suit. It is not desirable to call upon the defence to frame a theory either at the beginning or at any other stage of the hearing, particularly in a-case of difficulty in which the theory of the prosecution itself is by no means, clear and whether there was any misunderstanding or not, Mr. Boss Alston, if he did refuse, was perfectly within his rights in declining to accept the invitation. I feel bound also to say that it is due to the father of the accused, to whom this case must in any view have been a source of great anxiety and who obviously was in a position of considerable difficulty in the witness-box, to say that, in my opinion, without having heard anything suggested against his demeanour at the trial, and after reading his evidence over and over again, he gave it with candour and freedom from any trace of dishonesty. He dealt in detail with the conversations which he had with his SOD, and with the Vakils who were advising at that critical moment in the defence, hut as far as I can see, the evidence which he gave was, an I have said, candid and straight-forward and I do think that some better reason should have been given for throwing over the whole of his testimony than the mere fact that his name was Mukherji. The telegram, the absence of which is commented upon, is now in our hands. It has been produced by Mr. Boss Alston. There is one very curious feature about it, which only shows the importance in a ease of difficulty of probing every clue, and this is the duty of the Police, as far as possible. Certainly before 2 o'clock, if not considerably before, the accused was at the Kotwali and from that moment remained in the oustody of the Police. His witness says that the conversation about sending the telegram took place about 1-30. The telegram itself states officially that it was handed in at the Allahabad Telegraph Office at 12 minutes past 3. We are now informed that that hour relates to some transaction inside the office. The statement on the form is that the time was noted at the moment when it was handed in at the telegraph office. Therefore, the inference to be drawn from the telegram itself is, either that it was handed in at a time when the accused was in the custody of the Police or that there is great remissness in the telegraph office with regard to the entries of these matters. It is impossible to say that cases may not, and do not often occur, when the time and day of an act done, recorded accurately and officially, becomes of vital importance in an enquiry, and if the practice is in the post office to enter as the hour for handing in a telegram something which is two hours wide of the mark, the sooner that practice is abandoned the better. The entry ought to be accurate, and made in ordinary language, either in English or the language which is used for the telegram, so as to be readily understood by -any person of ordinary intelligence without consulting a Code. This is a side issue, but it does so happen that the point has not actually been cleared up in the evidence. I agree that the conviction must be quashed.
11. We accept this appeal, set aside the conviction and sentence in this case, acquit the appellant Surendra Nath Mukherji of the offence charged and direct that he be forthwith released.