MATTER OF GHOSE, Convict. Judgment. 1878 is not placed as prominently as it should have been before the IN THE Jury. We now come to the consideration of the case itself. It CHINIBASH appears to be clear that Chinibash, the accused, used to visit the woman Soorut. He had known her for some two years before the crime was committed; but his visits were not approved of by the witness Komul, who describes herself to be a bawd, KEMP, J. under whose protection the woman Soorut lived. Komul tells us that she objected to the prisoner visiting Soorut, her girl, because he was not a good paymaster, and because his visits interfered with the visits of other parties in a better position to pay for the services of the deceased. In this case there appears to us to be no reasonable motive for the cruel murder with which the accused has been charged. Absence of a known motive is not, of course, sufficient to establish the innocence of the accused; but it is an important element in a case of this description, where we find a woman brutally murdered-for the medical officer deposes that she had seven severe wounds on the upper part of the body, viz., the head, shoulders, and neck; and that the spinal cord was severed. The murder of this woman took place between the hours of seven and nine in the evening in the town of Budesshur. The house in which Soorut lived is in that town; and it is in evidence that there are several houses occupied by prostitutes and others in the immediate vicinity of that house. The constable, Lutchmun Patuck, (whose lodgings are also within a very short distance-a few. cubits only-from the house of the deceased) states that he heard a golmal, and that he rushed to the house of Soorut; that he was very much agitated and confused at the sight of the body of the murdered woman; and that he does not remember whether the women (that is to say, the witnesses Komul Boishtomee, Mon Mohinee, Ranee Tamulinee and Khettro Mohinee) mentioned, at the time, the name of the accused as the murderer of the woman Soorut. The constable proceeds to the Police station immediately after viewing the body of the deceased, and arrives at that station within a very short time (less than an hour after viewing the body); and in his first statement to the Police (and this is always an important matter in a case of this description) he says that the name of the murderer is not known. 1878 IN THE MATTER OF The women who have been mentioned above all depose that they clearly mentioned to the constable, Lutchmun Patuck, the name of Chinibash as the party whom they had seen rushing CHINIBASH from the premises of the woman Soorut immediately after they GHOSE, Convict. heard the groans of the deceased. It has been attempted to account for the fact that Lutchmun Patuck did not mention the name of the accused, by stating that he is an up-country man, a resident of the Benares district, and that he is not well acquainted with the Bengali language. Now, that the constable knows the Bengali language is clear; for in his evidence he admits that he understood the women to say Khoon hoyache, khoon hoyache; and Ei, Katya Palya Gyache; and again, Shunker, who accompanied the constable to assist him in the apprehension of the prisoner, deposes that the constable made use of the following words when he, the witness Shunker, said, that he thought it was unnecessary to bind the hands of the accused; Eto bora lok teen jon dhorite hoibe. From this it appears to us clear that Lutchmun Patuck well understood the Bengali language. Further, we find from his evidence that he was personally acquainted with the accused previous to the occurrence of this murder; for he deposes that he met the accused on the day of the murder, and that the accused proposed to him, the constable, to accompany him on a visit to Benares. He further states that he observed on that occasion that the prisoner had an umbrella in his hand; that it was of a pink colour; that one of the ribs of that umbrella stuck out of the cover; and that that circumstance attracted his attention. Now a pink umbrella was found in the house of the murdered woman, and Lutchmun Patuck has deposed that that was the umbrella of the accused. There is also another witness who mentions that umbrella, but that witness is unable to speak with any certainty as to the ownership of the umbrella. The identification of this umbrella by Lutchmun Patuck seems to us to be open to much doubt. It is difficult, too, to understand how the prisoner could have taken this umbrella to the house of the deceased, Soorut, on the evening of the murder; for when he was arrested very shortly after the murder, another and a very different umbrella was found in his possession. The evidence of Judgment. KEMP, J. 1878 IN THE MATTER OF CHINIBASH GHOSE, Convict. Shunker, as well as that of the constable, Lutchmun Patuck, tends to prove that the prisoner was arrested when on his way home from the scene of the crime. It is not suggested how he found, or that he picked up, the umbrella that was found in his possession; we are, therefore, forced to the very unreasonable conJudgment. clusion that the prisoner took two umbrellas with him to the house KEMP. J. of Soorut, and took away only one of them, one which had in no way been previously identified, and left the pink one which the constable professes to have seen with the accused previous to the occurrence of the murder. Then there is another very peculiar feature in this case, namely, that although these four women profess to have seen the accused running away from the house of the deceased immediately after the murder, and although they state that they mentioned the name of the accused to the constable as well as to the Police immediately on the arrival of that officer and the Police on the scene of the murder, yet the Assistant Magistrate who committed this case thought proper to take proceedings against two other parties, namely, Bhoot Nath Pal and Koonjo Telee, who were also in the habit of visiting the deceased Soorut. These two men were chalanned by the Police, and were called upon to prove their whereabouts on the night of the murder. Evidence was gone into in support of their respective defences; and, in the case of Bhoot Nath Pal, the Assistant Magistrate went so far as to make him produce the account books of a connection of his (who keeps a shop) to substantiate his defence. Now, it is clear that if these women were speaking the truth and had seen the accused, Chinibash, rushing out of the house of Soorut immediately after the commission of the murder, and if the Police were in possession of the name of the murderer within a very short time after the occurrence of the crime, it would have been unnecessary for them to have chalanned Bhoot Nath Pal and Koonjo Telee. Then there is another fact in the case which is deposed to by the head constable, namely, that when the constable, Lutchmun Patuck, was deputed to apprehend the accused, the head constable sent Shunker and another man with him in order to identify the accused. Now, as already stated, the constable, Lutchmun Patuck, admits that he knew the accused, that he had conversed with him on the day of the murder, and that he had observed the umbrella which was then in the hands of the accused; and therefore it was wholly unnecessary, supposing that the constable is speaking the truth, to depute any person for the purpose of assisting him in the identification of the prisoner. After careful consideration of the whole of the evidence in this case, we are not satisfied that the prisoner is guilty. We therefore acquit him on the charge on which he has been convicted by the Sessions Judge, and direct his immediate release. MORRIS, J.: I think that many circumstances in favour of the prisoner have not been properly laid before the Jury; and, so much suspicion attaches to the evidence which connects the prisoner with the crime, I concur in directing his acquittal. 1878 IN THE MATTER OF CHINIBASH GHOSE, Convict. Judgment. KEMP, J. MORRIS, J. VOL. I. и 2 1878 February 18. [CRIMINAL REVISIONAL JURISDICTION.] [FULL BENCH.] IN THE MATTER OF BAIDYANATH DASS (CONVICT.) Act XXI of 1856, section 49-Confiscation-Fine-Summary Trial-Code of The confiscation which is provided for by section 49, Act XXI of 1856, is merely a consequence of the conviction, and does not form part of the punishment for the offence. An offence under that section, which is punishable with fine, may, therefore, be tried summarily by a Magistrate under section 222 of the Code of Criminal Procedure, Act X of 1872. Khetter Mohun Chowrungi, 22 W. R., Cr., 43; and Juddoo Nath Shaha, 23 W. R., Cr., 33, overruled. THIS HIS case was submitted to the High Court by the Officiating Sessions Judge of Rungpore, with a recommendation that the order of conviction and sentence passed by the Magistrate on Baidyanath Dass be quashed, on the ground that the Magistrate had tried the case summarily, the offence being one which could not be so tried under section 222 of the Code of Criminal Procedure. The facts of the case were these: The prisoner was charged with the illegal possession of ganja. He was tried summarily before the Magistrate, convicted, and sentenced to pay a fine of Rs. 200. The Magistrate further directed that the ganja found in the pri soner's possession should be confiscated. The Division Bench (MARKBY and PRINSEP, J.J.) referred the case to a Full Bench in the following terms: "The matter which remains for our decision is whether an offence under section 49, Act XXI, 1856, can be tried summarily by a Magistrate under section 222 of the Code of Criminal Procedure. "The punishment for that offence (on which this matter depends) is thus described: The offender shall forfeit for every such offence a sum not exceeding Rs. 200.' It is further stated ' and the liquors and drugs, together with the vessels, packages |