TODAN MIR ALIAS ABDUL KADIR Vs. EMPEROR

JUDGEMENT

(1.) In this case we think that this appeal should be allowed. This is a case which has given us much cause for consideration. It is a serious case, one in which the accused was charged with the offence of arson, for which he has received a very considerable sentence, one which, in my opinion, is not too severe for an offence of this kind, if it were clearly proved that he was guilty of it.

(2.) Now, the learned Judge has given a very careful and elaborate judgment in this case: and unwilling as I am ever to interfere with the decision of a learned Judge who has had the opportunity of seeing and hearing the witnesses in the Trial Court, in this ease I think there are certain matters which lead us to think that it would not be safe to allow that judgment to stand. First of all, the learned Judge in summing up his conclusion says: "On these facts I believe the evidence of the Sub-Registrar" (that is the complainant) "and his servant Asdu, supported as it is by the previous chain of events and the last link in that chain at Rahim Ali s house." Now, we have come to the conclusion that even assuming that the learned Judge was entitled to admit evidence of those events to which he has referred, as to which I will say a word in a minute, it is clear that he has laid a very considerable stress upon that chain, and it is doubtful whether he would have come to the conclusion at which he arrived, but for the chain of events to which he has referred. Now what is that chain of events? Stating it quite shortly, it is this: apparently this boy wanted the post of the second Pundit in a school but be did not obtain it--I am not going into details--and consequently the learned Judge comes to the conclusion that the boy and perhaps more particularly the boy s father had got a grudge against those who were connected with the school, The school itself was burnt down and the first Pundit s house had been set on fire and the evidence was that the Pundit had great difficulty in getting accommodation, because the people were afraid that if they gave him accommodation, their property might suffer from fire in the same manner. Then the learned Judge refers to two cases: He refers first to the case of Makin v. Attorney General (1894) A.C. 57 : 63 L.J.P.C. 41 : 6 R. 373 : 69 L.T. 778 : 17 Cox. C.C. 704 : 58 J.P. 148 in which some people were charged with the murder of a baby and on a part of their premises the bodies of their dead babies were found. Then he refers to the case of King v. Smith where a man was charged with the murder of his wife by drowning her in her bath, and the evidence relating to the deaths of two of his previous wives had been admitted, And, upon the strength of those two cases, he admitted the evidence relating to the dispute about the school and the previous fires. With great deference to the learned Judge, I do not think that those two cases to which he referred had any bearing upon this case. In both the cases, it is obvious that the previous facts of which the prosecution wanted to give evidence related in a direct manner to the actions of the accused persons, but in this case although there is some evidence that the accused boy had mixed himself up in some way with regard to the theft of some articles from the school, by saying he could give a clue and would secure the return of the missing articles if he were appointed to the post of the second Pundit, there is nothing whatever to connect that boy in any shape or form with the previous fires which occurred in the village. Therefore, I do not see what the evidence of the previous fires in the village has got to do with the present case at all: and that being so, it seems to me that it would not be safe to leave the case as it stands, because we are unable to say that the evidence as to what the learned Judge calls "the previous chain of events" may not have had an important effect on his mind.

(3.) Further than that, there are one or two Jacts with regard to the other part of the case, namely the question of identification and also the question of the evidence of the complainant and his servant. These are the points that I mentioned in the course of Mr. Sanyal s argument, which struck me as important.