MT JAHURA BIBI Vs. EMPEROR

JUDGEMENT

(1.) I regret I am unable to agree with my learned brother in the grounds which he has given for ordering a retrial. It is not a case which rests entirely on circumstantial evidence. There is the confessional statement of the accused. There is also some evidence that the deceased told some witnesses that he felt a sensation similar to the after-effect of poisoning after he had taken his meal given by the accused.

(2.) As to the question whether calomel might have been administered, it is only a suggestion and the Court is not justified in asking the jury to act upon suggestion only of the existence of a fact without any evidence whatsoever. The local doctor denies that he administered calomel. There is no suggestion that anybody else did it. It is not the duty of the Judge, it seems to me, to place before the jury theories of facts which are not supported by any evidence. It is not proved that there was any one in the house besides these three persons, the accused, the deceased and the mother of the deceased or that anyone had any access to the house on that evening. The learned Judge's charge seems to me to be extremely fair and he has stretched a point or two in favour of the accused. But I agree with the order of my learned brother which he has passed for a retrial, because it appears to me that on one point the learned Judge has been rather assertive in his opinion. There were two questions which were necessary to be placed before the jury and one was whether the death was due to poisoning. On this point the learned Judge has in some places assumed the death of the deceased to be due to mercurial poisoning. That point with all the evidence bearing upon it should have been left to the jury. It is hoped that the evidence of Col. Thakur might be available when the case is again taken up for retrial, and this is another inducement for us to agree to a retrial.

(3.) The conviction and sentence will be set aside, but the accused will remain in custody, pending further orders of the Sessions Judge. Patterson, J.