Pearson, J.:— This appeal is by the Crown against a verdict of acquittal by a majority of the jury, accepted by the trying Judge. There were four accused, namely, Purna Chandra Das, son of one Haricharan, Gopal Chandra Pal and Abdul Gani, friends of Purna, and Saraswati Dasi wife of Haricharan and mother of Purna. The charges were S. 120-B/302, I.P.C, against all four accused, and under S. 302 and 201 against the accused other than Saraswati, and related to the deaths of one Kiranbala the mistress of Haricharan and her daughter Parul a child of 6 or 7.

2. The case for the prosecution was that Haricharan's preference for his mistress had been the cause of quarrels between him and Saraswati and Purna. On the afternoon of 8th April 1930 preceding the occurrence Haricharan and Saraswati were both unwell. Kiranbala and her daughter were sent for through a servant Nanda a boy of 14, and came to the house with a change of clothing. Nanda, it is said, overheard a conversation that evening between mother and son, on the subject of the killing of Kiranbala and her daughter. The prosecution says that in the early hours of the morning the scheme was carried out and both were throttled. The ornaments were removed, the clothing made into a weighted bundle and thrown into a tank, and the bodies thrust into a metal trunk and removed. On 10th April a packing case was received at Hazaribagh Road station booked as containing copper wire and consigned by one B.K Ghose from Howrah to S.K Ghose. Its appearance resulted in the police being sent for and it was opened in their presence and was found to contain a steel trunk locked and roped. This was also opened and found to contain two dead bodies, of a woman and a girl. On 11th April the bodies were taken to Dhanbaid and photos were taken. They were then all sent back to Howrah, and information of the circumstances was published in the papers. On 21st April 1930 one Kiranbala of 4, Mirzapur Street, a niece of the missing woman, sent a petition to the police saying that her aunt with her daughter had been called away to Haricharan's house some time ago and since then nothing had been heard of them.

3. Investigation thereupon commenced and Sub-Inspector Yakub Ali inter alia found an entry (exhibit in this case) in the General Diary of the Balighata Police Station under date 19th April 1930 to the following effect:

“Kiranbala Dasi of 4, Mirzapur Street v. Kiranbala Dasi of 25/1 Talpukur Road (the address of the missing woman): Charge leaving the complainant's protection with her daughter and household effects. Referred to Court.”

4. Kiranbala was examined and other neighbours, the photos identified, and on 26th April Haricharan, Purna and Nanda were arrested. Keys fitting the trunk were taken from Purna. The same evening Nanda made a statement to the police, and thereafter took them to the house of accused 3, Abdul Gani, where both he and accused 2 Gopal Chandra Pal were arrested. At that time both these accused made self-exculpatory statements, but involving Purna. That night the tank was searched for the clothes, which were recovered by fishermen on 27th April, the day following. On the afternoon of the 27th Purna pointed out the shop of Kanailal, who produced certain of the ornaments. He also took them to the packer's shop of Golam Ali, who with his servant Kaim Ali identified Purna and accused 2 and 3 as also the steel trunk. The police also took Purna to the house at Biswas Nursery Lane that day, and it is said that when a police constable picked up a metal rod Purna said “that was not it” and handed over another one to the police.

5. We have had the charge of the learned Judge to the jury placed before us and it is contended that the verdict has been vitiated on the ground that the Judge has wrongly excluded material evidence legally admissible and has misdirected the jury in important particulars.

6. Complaint is made, first of all, that the Judge did not allow the prosecution to prove the statement or part of the statement of Purna which led to the discovery of the ornaments in the shop of Kanai important, it is said especially having regard to the suggestion of the defence that the case was false and witnesses tutored. The complaint here is however without any foundation whatever, for nowhere does it appear from the record that any attempt was ever made by the prosecution to prove any such statement. It is one thing to say that the evidence should have been given and quite another to say that the evidence was offered and was wrongly rejected by the Judge.

7. Next, it is contended that the prosecution was not allowed to prove the fact that Purna took the police to the packer's shop and pointed it out. This at any rate is the form in which the grievance is formulated in para 21 of the petition of appeal. A reference to the order-sheet in the Sessions trial for 11th September 1930 shows that what was sought to be proved was not the fact in question, but the statement of Purna which led the police to visit and make enquiries at the packer's shop. So far as the fact itself goes, I find from the evidence of Yakub Ali, the investigating officer that it was not excluded, for in the course of his evidence he says:

“On 24th April Purna took us to the packing shop of Golam Mallik at 35, Harrison Road. I examined Golam and Kazimali there.”

8. It is not correct therefore to say that the prosecution was not allowed to produce evidence to prove that fact. In so far as the grievance now made is based on the exclusion from evidence of a statement said to be made by Purna to the police prior to the enquiries at the packer's shop the Crown have not satisfied me that it is admissible as a statement of the accused resulting in the discovery of a fact within the meaning of Section 27 of the Evidence Act. It was chiefly contended before us that S. 8 of the Act would make it admissible under the heading of conduct, but in my judgment this argument is not maintainable particularly having regard to Expl. 1 to the section, which expressly states that the word “conduct” as used in the section does not include statements.

9. Next it is said that the prosecution were not allowed to adduce evidence as to Puma's statement or exclamation when the metal rod was handed over to the police. The Judge directed the jury that the statement (which was apparently disclosed in evidence) was inadmissible, and must be discarded from their minds, the only question for determination being, as he put, “whether you can believe that the rod was made over by Purna” to the police. Now on this particular point it appears that the statement in question came out in the evidence of P.W 22 upon a question as to what the constable found out: the Judge's note (repeated in the order sheet for 5th September) is that thereupon:

“the witness stated that the constable found out a pipe rod and volunteered that Purna stated that this was not the rod.”

10. That was objected to by the defence and was not recorded. It is quite clear that the Public Prosecutor made no particular point of the statement, did not press for it to go in and did not resist its exclusion; not improbably the reason for his attitude was that he felt that such a statement confessional in character could not be admissible in evidence in the circumstances in which it was given, and could hardly be brought in as a statement in consequence of which a fact was discovered. However that may be, there is clearly no ground upon which the prosecution, having regard to their attitude at the time, are entitled to say that this is a good ground to upset the verdict.

11. Next it is said that the Judge did not allow the prosecution to adduce evidence to prove the self-exculpatory statements of the accused Gani and Gopal at the time of their arrest, the substance of which is set out in para 12 of the petition. The foundation of this alleged grievance is as follows: when Yakub Ali the investigating officer was being examined he was asked this question: “Did you ask Gani whether he had gone to Delhi?” and then appears a note by the Judge:

“the question is disallowed on the ground that the answer if in the affirmative would be an admission of an incriminating nature.”

12. Then the evidence goes on:

“Khuku (i.e, Gani) made some statement about going to Delhi. I went to Bombay Muslim hotel for making an enquiry. I examined Ahamad Yar. I seized this register.”

13. These are the whole materials upon which the present contention rests. It is said that the question which was disallowed was intended to introduce and lead up to the self-exculpatory statements, and that the exclusion of the one has meant the shutting out of the others. It is clear that this is an empty objection with no sound or substantial foundation. How was the Judge to know that this was supposed to be leading up to the statement? If the prosecutor had chosen to persist he might have formulated other questions to make his position clear, and if they had been disallowed he would have at least been able to show that he had made the attempt to get the evidence in: or he could have explained what it was he wished to do and if not allowed to do it, he could have had the whole thing placed on record. But as the matter stands, this one question is disallowed, and thereupon no further attempt is made to get this evidence on the record at all. The matter is not followed up but is allowed to drop. It is impossible in that state of affairs to say that the Judge refused to allow the prosecution to adduce evidence to prove his statements. That stage was never reached. The prosecution never took it far enough. There was no question of the Judge rejecting or not rejecting.

14. The above are admittedly the main grounds on which it is sought to set aside the verdict of the jury, and in my judgment they have not been made out. Apart from these, counsel for the Crown here has stated that he can only rely upon the cumulative effect of facts not properly placed before the jury.

15. In prelude to what follows it must be remembered that the Crown was throughout fully represented in the conduct of the prosecution, and was able to place the whole case in the strongest light before the jury. The Judge in his summing up is in a very different position, and must not thrust his opinion down the throats of the jurors. Much of the criticism directed against the charge has really amounted to this that in one particular or another the Judge might have presented the case to the jury more strongly against the accused than he did and here and there has omitted to refer to facts or inferences which would have more highly coloured the case in favour of the prosecution.

16. As regards the entry in the General Diary (Ex. 15) which was written in there by a literate constable, it is said that the Judge should have referred to Ex. 15-A, another entry merely supporting the prosecution case that in other cases also this man had shown himself to be muddle-beaded and incompetent. In my judgment the learned Judge in his charge has dealt with the matter perfectly adequately. He says Ex. 15 may seem at first sight to support the defence case but he draws attention to the prosecution evidence that it was a foolish entry and a mistake. This is followed by a definite pointer against the probability of the defence suggestion. It has also to be borne in mind that this entry was put in by the prosecution and as such the defence were entitled to make what use of it they could in support of their case.

17. Then something is said about the evidence of the packers, where the Judge says that the only question for consideration is whether it was possible for them to identify the accused after the lapse of 18 days. The criticism is that the Judge should have pointed out that the identification could not reasonably be doubted. In my opinion the Judge has dealt with this perfectly fairly. He has pointed out to the jury that Purna and Gopal were in the shop for 30 to 45 minutes and he adds that there is nothing to indicate why they should depose falsely.

18. Some exception has also been taken to the way the Judge has dealt with the evidence of identification of the bodies from the photos and has said that if the jury does not believe the photos to be those of the girl and her mother the case shall end there. This must be read reasonably in connexion with the context: the question he was dealing with was whether the police were developing a case to fit the facts or not and whether this was a part of the scheme.

19. The suggestion that the jury should have been told to judge for themselves as to the similarity of the writing in the forwarding note with that of Ganiseems to me to be of little substance, when the expert himself stated that he was unable to give any conclusive opinion. In such circumstances it seems quite reasonable for the Judge to say as he did that in his view much weight should not be attached to any resemblance in the circumstances.

20. As regards nothing having been left to the jury to say whether Nanda was or was not an accomplice, I am of opinion that the learned Judge was perfectly correct in his summing up upon the footing that Nanda was an accomplice. No other view was permissible on the facts.

21. Certain omissions are also relied upon in the charge, as for instance, the evidence relating to the previous prosecution of Purna in 1928 by Kiranbala that one of the witnesses had prepared a horseshoe pattern ring for deceased Kiranbala the evidence of P.W 22 that Nanda was a servant in Haricharan's house on 8th April 1930. These however are only matters which might have been brought in along with others bearing on the same point and cannot be relied upon as a misdirection sufficient to vitiate the trial.

22. Comment was also made that Nanda was cross-examined about certain previous statements without his attention being drawn to the specific passages. As to this it is not suggested that anything more was done than to ask the witness. Do you recollect if you stated so and so and the reply was I do not recollect. The answer itself does not appear to have been used as discrediting the witness in any way and the matter was simply left there. I am of opinion that there is no substantial cause of complaint in this respect.

23. Upon a view of the whole of the Judge's charge and his dealing with the evidence I am not satisfied that any good case has been made out upon the main points and as regards the minor matters I am of opinion that their cumulative force is not such as to warrant us in directing a reversal of his order of acquittal under Section 423 of the Cr PC. I consider that there are not sufficient grounds for interfering and that the appeal should be dismissed. The accused who are in custody will be released forthwith and the bail bond of the woman accused who is on bail will be discharged. The accused will all be acquitted.

Rankin, C.J:— I agree.

Mallik, J.:— I agree.

K.N/R.K

24. Appeal dismissed.