JUDGMENT 1. Between the hours of 6 and 7 after nightfall, on the 6th March last, Syed Ali, a young man of the age of about 25 said to have been a baker of bread at Comilla died from the effects of gunshot wounds. The post-mortem examination made by Dr. Anderson, the Civil Surgeon of Tipperah, on the following day, showed 60 shot marks, 57 of which were found to be over the front and left of the chest. The injuries to the lungs, liver, abdomen, and the heart were fatal, and according to Dr. Anderson those to the lungs and the heart would alone quickly lead to death. The shot used was No. 4. Syed Ali dropped dead or almost dead, close by a lamp-post in the street at Comilla, called the Goodhia's Tank or Rajgunj Road, the lamp-post being a little towards the east of the junction of the street with the Chhatapati Road or lane on its north side. To the north-east of the lamp-post is a nitrate. Very shortly after the occurrence, the Commissioner of the Division, the Magistrate of the District, and Mr. Byrne, the District Superintendent of Police, came to the place, and the dead body of Syed Ali was thereafter removed to the police station, and thence it was taken for post-mortem, examination by Dr. Anderson. Makbul Ahmed, a clerk of a mukhtear practising in the Criminal Courts at Comilla, came forward as the first informant, and at 9 P. M. the first line of the first information was recorded at the police station. The scene was then shifted. From the police station, he was taken to the European club and thence to the Circuit House and there at 11 P.M. in the presence of the Commissioner, the District Magistrate, and Superintendent Byrne, the Court Inspector Kesab Lal Banerjee completed the record of the first information. In this information, the three Appellants, namely, Nibaran Chunder Rai, the writer-constable of the police station, Mangal Singh, the Sub-Inspector of the station, and Dwarka Nath De, a mukhtear of the Criminal Courts at Comilla, were named as the accused. Mangal Singh and Nibaran were later on during the night brought from the police station, where they were, to the Circuit House, and there they were confronted with Makbul Ahmed. Mangal Singh and Nibaran were later on during the night brought from the police station, where they were, to the Circuit House, and there they were confronted with Makbul Ahmed. The gist of the first information was that Nibaran had been found to have a gun in his hand immediately after the deceased whose name was even then unknown was shot at the Chhatapati Road and that Mangal Singh and Dwarka Nath had rescued Nibaran when he was caught with gun in his hand by Makbul, and that Nibaran had fled after throwing the gun on the road. Makbul, however, did not name any witnesses to the act. He said that there were many persons present, but curiously he could not tell the name of any. The gun was also not produced, and it appears no attempt had been made either by Makbul or any one else to lay hold of the gun when it was thrown on the street. 2. On the morning of the following day, the 7th March, the investigation was resumed by Superintendent Byrne and Inspector Kesab Lal. They inspected the Chhatapati Road. A few pieces of paper supposed to be burnt paper and used for wadding were discovered. They were picked up. According to Inspector Kesab Lal they smelt of gunpowder. They were afterwards kept at the police station and were ultimately produced in Court. A boy Hamid Ali found a ram-rod in a drain near Dwarka Nath's lodging house, but it fitted none of the guns which or one of which, according to the case for the prosecution, must have been fired and caused the death of Syed Ali. The ram-rod was evidently used for loading a different gun, and its discovery does not therefore help in the least the prosecution, but, on the other hand, it excites suspicion that attempt at fabrication was being made by persons interested in seeing the accused convicted. Dwarka Nath was questioned. He produced a license for a gun but stated that the gun itself was at his house at Amira which was 27 miles distant from Comilla. No gun was found in his lodging-house upon the search made at the time by Byrne. Dwarka Nath was questioned. He produced a license for a gun but stated that the gun itself was at his house at Amira which was 27 miles distant from Comilla. No gun was found in his lodging-house upon the search made at the time by Byrne. He also stated to Byrne that he was not present at Comilla at the time of the occurrence and that he had gone to Chandpur and had returned some hours after the occurrence by the Chandpur mail on search of Dwarka Nath's house nothing suspicious was found. A few witnesses were also examined by Byrne on that morning. 3. In the meantime, events were taking place which brought in another District Superintendent of Police, Mr. Ryland, at Comilla, and led to the supersession by Byrne. Mr. Ryland was at Dacca, and at midnight of the 6th March he was sent for by the Chief Secretary to the Government of Eastern Bengal and Assam, and was directed to proceed at once to Comilla, and he necessarily took up the investigation superseding Superintendent Byrne. Byrne, it appears, was transferred to Dinajpur. Superintendent Ryland reached Comilla at about 2 P.M. on the 7th March and took up the investigation at once. He was not satisfied with the search made of Dwarka Nath's house by Byrne. He searched the house on the 8th March. The house was unoccupied at the time and the doors were open. Ryland entered the house without any obstruction. He did not find any person in occupation of it, but he discovered two copies of the Hitatadi newspapers of the 23rd November 190G lying on a table. The discovery of the papers was not, however, of much value as the house was vacant, and it was easy for any person interested in the prosecution to introduce them. The pieces of paper discovered by Byrne and Kesab Lal on the previous day-papers which were supposed to have been used for loading the guns-were found to have been torn from the Hitabadi newspapers found by Ryland in Dwarka Nath's house on the 8th March. On the same day Dwarka Nath was arrested. Mangal Singh had been off duty at the police station from the 6th to 8th March on account of illness. He had taken leave from Byrne, but he was at the station. On the same day Dwarka Nath was arrested. Mangal Singh had been off duty at the police station from the 6th to 8th March on account of illness. He had taken leave from Byrne, but he was at the station. Notwithstanding that Makbul had accused him he was allowed to take charge of his duties on the 9th March, but he was arrested four days later. Notwithstanding the serious charge brought against him, Nibaran was also allowed to continue to be on duty, but he also was arrested along with Mangal Singh. Ryland took about 18 days to complete the investigation and the final report of the police in " A " Form was submitted on the 25th March. 4. The preliminary enquiry was held by the Joint Magistrate, Mr. Dunlop, who committed the accused to take their trial before the Court of Sessions. The Sessions Judge, Mr. A. H. Cuming, was assisted in the trial by two assessors, one of whom was of opinion that the accused were not guilty of any offence. The other assessor was of a contrary opinion, and the Sessions Judge, agreeing with the latter, has convicted Nibaran of murder under sec. 302, I. P. Code, and has sentenced him to death and has convicted Dwarka Nath Dey and Mangal Singh of offences of murder and of abetment of murder under sec. 302 and sec. 302 read with sec. 114, and has sentenced them both to transportation for life. The case is before us on a reference under sec. 374 of the Code of Criminal Procedure as regards Nibaran Chunder Rai and on appeal by all the accused. 5. The findings of fact arrived at by the learned Sessions Judge, even if they are supported by the evidence on the record, are not in our opinion sufficient to convict any of the accused; but as we shall presently show the evidence, in our opinion, is wholly insufficient to support the findings of fact of the learned Sessions Judge. Karim, witness No. 3 for the prosecution, a cultivator and a cart driver, introduced into the evidence the story of his having seized one Lalit Doctor who, he alleged, was passing with a gun in Chhatapati Road just about the time that Syed Ali was shot. Karim alleged that he had brought Lalit on the road but that Lalit was rescued by Mangal Singh and Dwarka Nath. Karim alleged that he had brought Lalit on the road but that Lalit was rescued by Mangal Singh and Dwarka Nath. The presence of Lalit Doctor at the scene of occurrence with a gun in his hand was also attempted to be proved by Abdul Guffur, the 5th witness for the prosecution, who said that he had seen Karim and Lalit Doctor struggling. Witnesses Naru Khalifa, Mazidulla, Syedul Hossein, and Dewan Mustafa Ali have also corroborated Karim. The learned Judge has believed these witnesses and the story of Lalit's appearance with a gun at the scene and his escape. He has also believed Makbul's story of Nibaran's presence with a gun and Nibaran's escape. 6. So, according to the learned Judge, there were two persons at the scene of occurrence who had each a gun in his hand just at the time Syed Ali was shot dead. The person who actually killed Syed Ali by gunshot was not observed by any of the witnesses. The learned Judge in his judgment says: " Either this man (Lalit Doctor) or Nibaran fired the shot that killed Syed Ali." Again, he says: "The act by which Syed Ali's death was caused clearly falls under sec. 302, whether Nibaran or the other man fired the fatal shot will probably never be known." In another part of the judgment, the learned Judge expresses himself in the following words: "It may be urged that no one saw him (Nibaran) fire a gun. True, none of the witnesses for the prosecution could swear that he was the man who fired the fatal shot." There is no finding in the judgment of the learned Judge that Nibaran and Lalit had a common intention, that they acted in concert and that guns were fired in furtherance of the common intention of the parties. The legal inference from these findings must be that neither Lalit nor Nibaran was guilty of the offence of murder. [The Ipswich case, King v. Richardson 1 Leach's Crown L. Cas. 431 (1785). The learned Judge has laid down as law that " If a gun is fired and a man is killed and if a certain person is found immediately afterwards on the spot from which the gun was fired with a gun in his hand, the burden of proof that the person was there with a perfectly innocent intention clearly falls on that person. Otherwise, the reasonable inference is that he was the person who fired the fatal shot." He refers to Queen v. Jan Mahomed 1 W. R. Cr. R. 49 (1864). as authority for his law, but that case is no authority for the proposition enunciated by him. The hypothetical case as put by the learned Judge may be strong circumstantial evidence against an accused but it is an error in law to say that the burden of proving innocence lies on an accused in such a case. There is no such burden on the accused; the prosecution must prove its case either by direct or circumstantial evidence or both. 7. But if there are two persons who answer the description in the assumed state of facts, the circumstantial evidence loses its weight very substantially. There is no presumption that the person on trial fired the gun of which the effect was fatal and that the person who has absconded is innocent. One of them might be guilty but which one? If, however, two persons are found under circumstances as assumed in the hypothetical case, with guns in their hands and they have been acting in concert, or that each was an assenting party to the action of the other, the criminal act done by one must be presumed to have been done in furtherance of the common intention of both, and sec. 34 of the Indian Penal Code may be invoked to impose penal liability on any one of the persons in the same manner as if the act was by him alone.. (See also Roscoe's Criminal Evidence, 12th Edition, page 049, and Queen v. Gora Chand 5 W. R. Cr. R. 43 (1866).. Sec. 149 of the Indian Penal Code lays down the same principle, the distinction between sec. 34 and sec. 149 being that sec. 149 refers to an assembly of five or more persons while sec. 34 has no limitation as to the number of persons who may have been acting in pursuance of a common intention. The authorities cited by the learned Advocate-General would have supported the conviction, if a common intention was found to exist. 8. 149 being that sec. 149 refers to an assembly of five or more persons while sec. 34 has no limitation as to the number of persons who may have been acting in pursuance of a common intention. The authorities cited by the learned Advocate-General would have supported the conviction, if a common intention was found to exist. 8. Dwarka Nath and Mangal Singh have been found by the learned Judge to have rescued Nibaran and to have assisted him in escaping but such acts alone would not be sufficient for their conviction either for murder or abetment of murder. If they were not parties to a conspiracy for committing murder, if Nibaran and they had not a common intention, and if they merely assisted Nibaran in escaping after the commission of the offence by the latter, they cannot be guilty under the Indian law, either as principals or as abettors. In order to bring home to them the charge, it must be shown that either prior to or at the time. of the commission of the act by Nibaran, they or either of them did something in order to facilitate the commission of the offence and thereby facilitated the commission thereof. But, beyond subsequent assistance, no facts are either alleged or proved or found by the learned Judge against Mangal Singh. The additional fact that the papers used in loading the. gun or guns came from Dwarka Nath's house, even if such fact be assumed to be proved, would not also be sufficient to criminate Dwarka Nath. There is nothing to show that Dwarka Nath even knew of the use of the papers. The inference of the existence of an intention to abet or assist in the commission of the crime cannot, therefore, be drawn from the findings of fact arrived at by the learned Judge. Karim's story was evidently a later introduction and its only relevancy in the case lay in the allegation that Mangal Singh and Dwarka Nath took part in the rescue of Lalit Doctor. Karim, however, is utterly unreliable. His story was thought to be necessary in the chain of facts to show a preconcerted plan and to implicate Mangal Singh and Dwarka Nath either as principals or abettors. Such evidence, however, is too weak to support the theory of a common intention. 9. Karim, however, is utterly unreliable. His story was thought to be necessary in the chain of facts to show a preconcerted plan and to implicate Mangal Singh and Dwarka Nath either as principals or abettors. Such evidence, however, is too weak to support the theory of a common intention. 9. If, again, the findings of fact arrived at by the learned Sessions Judge cannot support Nibaran's conviction on the charge of murder, the assistance afforded to him by Mangal Singh and Dwarka Nath to escape cannot be the basis of the conviction of the latter either under sec. 302, 1. P. Code, or 302, I. P. Code, read with sec. 114. If Nibaran be innocent, Mangal Singh and Dwarka Nath must be found to be innocent, if Karim's story be discarded as a subsequent introduction and got up to prop up a weak case. The connection between the guilt or innocence of Nibaran is so intimately connected with that of the persons who assisted him after the act is said to have been done by him that the failure to prove the one must be fatal to the charge against the latter. On the findings of the learned Judge the charges against all the accused must therefore fail. 10. Nor can the findings of fact on which the conclusions of the learned Judge are based supported. They rest on utterly insufficient and unreliable evidence. The mode in which that evidence is dealt with by the learned Judge is also faulty. In dealing with the testimony of the material witnesses for the prosecution, the learned Judge has ignored the elementary principle of sifting evidence in this country, i.e., in the light of probabilities. Nor has he paid sufficient attention to the serious imperfections in the evidence and to the fact that the best evidence regarding many of the important points has been intentionally withheld. The piecemeal examination of the testimony of individual witnesses without a broad view of the facts, circumstances and probabilities of a case generally leads to a failure of justice, especially in a case where most of the witnesses are drawn from a class of persons whose testimony is frequently unconvincing and not unfrequently unreliable. The piecemeal examination of the testimony of individual witnesses without a broad view of the facts, circumstances and probabilities of a case generally leads to a failure of justice, especially in a case where most of the witnesses are drawn from a class of persons whose testimony is frequently unconvincing and not unfrequently unreliable. Even if the witnesses in a case do not break down in cross-examination or do not contradict each other, yet if their testimony is opposed to the ordinary course of human conduct and to the natural order of things, such testimony must be accepted with the greatest caution. If in addition to this we find that the best and most reliable evidence is withheld, it must, in most cases, we think, be held that the oral testimony adduced is insufficient to warrant a conviction. 11. The method of the learned Judge in dealing with the testimony of the witnesses by dividing them into two classes Hindus and Musclemen's-and accepting the evidence of one class and rejecting that of the other is open to severe criticism. The learned Judge ought to have directed his mind solely to the evidence which had been given before him and to have excluded from his consideration all preconceived sympathies with either section of the population. On this ground apparently the learned Judge has disbelieved the evidence of Inspector Kesab Lal Banerjee, though we fail to see any reason for finding fault with his testimony. The story told by Kesab Lall appears to us to be a plain and straightforward one and he has not attempted to conceal anything. 12. The informant Makbul Ahmed is the mainstay of the prosecution. He was not, however, one of the precisionists, who, it is said, were school students dressed in askhans and pyjamas. Nor was he one of the party that was showing honour to the Nawab of Dacca by singing and uttering the words Alla-ho-Akbar and Marhaba. The procession went from east to west of the Rajganj Road and he was not one of its members. The procession then went from west to east, and Makbul joined it, according to his own story, very shortly before the occurrence It was already dark or almost dark and the road was not lighted. The learned Judge finds that it was dark. The procession then went from west to east, and Makbul joined it, according to his own story, very shortly before the occurrence It was already dark or almost dark and the road was not lighted. The learned Judge finds that it was dark. The sound of the firing of a gun was heard from the direction of Chhatapati Road, and as if by an accident Makbul was there. He with others including the deceased Syed Ali rushed into the road from which the sound was heard, after a short discussion as to the cause of the sound. They came to the door of a shop, No. 22, belonging to Aswini Kumar De. They attempted to enter the shop and one or two actually inserted their legs into it, while Syed Ali went to the north-east corner of the shop and, according to the first information, was pulling the mat-wall from outside. 13. There was an evident attempt to enter the shop. Then a second gun was fired further north, and Syed Ali came running back and fell by the lamp-post on the main road. The interval between the firing of the guns was very short, according to the testimony of Makbul and the other witnesses, but the immediate events, as narrated by them, were many and must have taken a little time. The distance from the north-east corner of the shop to the lamp-post was more than 15 yards, and notwithstanding the change in the opinion of the expert witness, Dr. Anderson, there could be no doubt from the nature of the wounds on Syed Ali that he could hardly have moved the distance. It is a matter for remark that neither Makbul nor the other persons stated to have been present made any attempt to help Syed Alii after he was wounded. Makbul's story is that he was bent on catching the man with the gun and that he laid hold of him. The man, he laid hold of, was, he states, Nibaran, but Nibaran, he says, escaped with the assistance of Mangal Singh and Dwarka Nath. Makbul's story is that he was bent on catching the man with the gun and that he laid hold of him. The man, he laid hold of, was, he states, Nibaran, but Nibaran, he says, escaped with the assistance of Mangal Singh and Dwarka Nath. Nibaran, however, threw away, it is said, his gun on the road, but neither Makbul nor any of the others of the procession nor Mahomedan sight-seers nor members of the party that was attempting to enter Aswini Kumar's shop thought it desirable or necessary either to pursue Nibaran or lay hold of the gun as the strongest piece of evidence against the accused. Makbul and all the rest came running out of the Chhatapati Road obviously in fear of their lives, as one of the witnesses says. The story of Makbul running northward to catch the man with the gun is not easy to believe. 14. His catching him and the escape appear to be mythical. Makbul states that he shouted out that he had laid hold of Nibaran and that Mangal Singh and Dwarka Nath had helped Nibaran to escape out of his clutches. Makbul's shouts were, it is said, heard by others and from amongst them, Dewan Mustafa Ali, Mazidulla, Syedul Hossein and Asmat Ali have been examined to corroborate him. Chand Mia, a shop-keeper, who was returning from the fish market with fish he had purchased, gave testimony to corroborate Makbul a little more amply than. the other witnesses. He said he had seen Nibaran and Makbul struggling with each other and that when he approached them Mangal Singh and Dwarka Nath rescued Nibaran, but he did not see Nibaran with his gun or Nibaran throwing away his gun. Why, however, did he not attempt to take the gun said to have been thrown by Nibaran on the road? The plain reason seems to be that either he was not there at all or the road was in absolute darkness and neither men nor things could be recognized. None of these witnesses are school students except Asmat Ali, who in the Sessions Court was tendered for cross-examination only. The plain reason seems to be that either he was not there at all or the road was in absolute darkness and neither men nor things could be recognized. None of these witnesses are school students except Asmat Ali, who in the Sessions Court was tendered for cross-examination only. Syedul Hossein was a private student and said he was a member of the procession but little reliance can be placed on his truthfulness as he had pretended to be a student at the Madrassa when he was examined by Ryland and as his evidence is full of contradictions. The others are chance witnesses, and do not deserve much credit for truthfulness. Nor are contradictions in the testimony wanting. Dewan Mustafa Ali is no doubt a zemindar, and he, it is said, was leading the procession and the learned Judge has relied on him. He corroborated Makbul as well as Karim as to what they had shouted out to the people at the time. But on the most material point of his deposition, Mustafa Ali contradicted his own statement made before Ryland. He did not say before Ryland, as Ryland has proved, that Makbul had told him that Dwarka Nath was one of the rescuers of Nibaran nor did he name the rescuers of Lalit Doctor as given by Karim. Before Ryland he used the word " police " only and did not name Mangal or Dwarka. This was the crucial point in the case and there the development in Court was the greatest, showing that the testimony of this witness was utterly unreliable. Notwithstanding his position his want of veracity is patent, and it is surprising that the learned Judge should have placed great reliance on him. Indeed most of the witnesses show signs of subsequent development in their ideas as to the incidents of the day. 15. The evidence corroborating Makbul has, however, lost nearly all its weight owing to the non-appearance in Court or the non-production of witnesses. The best and most reliable witnesses could have been the Commissioner of the Division, the Magistrate of the District and Superintendent Byrne, but none of them were called by the prosecution. 15. The evidence corroborating Makbul has, however, lost nearly all its weight owing to the non-appearance in Court or the non-production of witnesses. The best and most reliable witnesses could have been the Commissioner of the Division, the Magistrate of the District and Superintendent Byrne, but none of them were called by the prosecution. Makbul states that " after the Sahibs came " (and they came immediately after the fall of Syed Ali): " I told them what I saw and did The Police Sahib whistled to me and mentioned to me to wait. One of the Sahibs, it may be the Police Sahib, enquired about the man who said he had seized. Then I said I did. The non-appearance in the witness-box of the Commissioner of the Division and the Magistrate of the District has not been explained, and we have every reason to believe that Superintendent Byrne, who could have given evidence on this as well as other points of importance, was purposely withheld from appearance at Comilla or the Court at the trial. During the course of the trial in the Sessions Court Byrne, on the 31st May, wired to the learned Sessions Judge himself from Dinajpur enquiring when he was required.. He again wired from Dinajpur on the 8th June, " kindly telegraph when required. Arrangements made to start to-night." The learned Sessions Judge directed an urgent telegram to be sent in answer: " Do not start till you get orders," and an urgent telegram was accordingly sent to Byrne, and Byrne was not examined. The inference from the withholding of such witnesses is irresistible that, if examined, they would not have corroborated Makbul and the other witnesses whose evidence had been given to support his statement. It was undoubtedly the duty of the prosecuting counsel in a case like the present to call the important witnesses who were in one way or other intimately connected with the transaction, or who, it was alleged, had come to the place immediately after the occurrence or had examined the state of things at the time or very shortly afterwards. In the absence of the testimony of these European gentlemen of position, we are unable to accept the evidence given in corroboration of Makbul's testimony. 16. The prosecution must then fall back on the uncorroborated testimony of Makbul, but his evidence, as we have seen, is full of inconsistencies. In the absence of the testimony of these European gentlemen of position, we are unable to accept the evidence given in corroboration of Makbul's testimony. 16. The prosecution must then fall back on the uncorroborated testimony of Makbul, but his evidence, as we have seen, is full of inconsistencies. If the gun was fired from the north and Syed Ali was facing west, as both Makbul and Abbas Ali say, the shot wounds on the chest, lungs and liver and the absence of wounds on the right side and the back are inexplicable. The theory that Syed Ali must have turned towards the north when the gun was fired is not supported by any evidence. Makbul does not say so. To put forward a theory to make his testimony consistent with indubitable facts is a logical fallacy. It is arguing in a circle. The conduct of Makbul is also inexplicable in his not taking steps to seize the gun and pursuing Nibaran and his alacrity in mixing himself up in a transaction involving a serious criminal case of the murder of an unknown man like Syed Ali whose name even and whereabouts he did not know before he lodged his information. He had evidently a motive not explained in Court. We cannot place the slightest reliance on Makbul's uncorroborated testimony. 17. The allegation as to the part taken by Mangal Singh in the occurrence also throw the greatest suspicion on the entire story of the prosecution. He is not a Bengali as stated by some of the witnesses. He belongs to a respectable family, being related to Prince Nava Dipa Bahadur. He was at the time a police-officer of some position and was in charge of the town police station at a time when the town was in a disturbed state. The presence of the Nawab of Dacca at Comilla was, as the evidence clearly shows, a cause of considerable excitement. On the 4th March, the day of the Nawab's arrival, the shop of one Abinash Chunder, a Hindu, was looted, and the witness Karim who introduced Lalit Doctor at the scene of occurrence with Mangal Singh as one of the rescuers was himself one of the rioters. Mangal Singh had taken a leading part in Karim's prosecution and Karim was convicted by the Magistrate and the 'conviction was affirmed by the Sessions Judge. Mangal Singh had taken a leading part in Karim's prosecution and Karim was convicted by the Magistrate and the 'conviction was affirmed by the Sessions Judge. Karim was in jail suffering rigorous imprisonment for this offence of rioting. On the 5th March the shop of Sundar Lal, another Hindu, was also looted. Hamid Ali, Karim's brother, was convicted for looting Sunder Lal's shop and Mangal Singh had conducted the prosecution. Thus both the brothers were in jail at the time the trial in the Sessions Court was going on. Mangal Singh must, therefore, have made himself an enemy to all rowdy Mahomedans at Comilla. There was an excellent motive therefore for dragging him in as a conspirator in the murder. Mangal Singh was evidently working hard on the 4th and 5th March in attempting to keep peace and order in the town. On the 6th March, he reported himself ill to Superintendent Byrne and was allowed leave for three days, the 6th,. 7th and 8th. He was off duty on the 6th, and was apparently ill. Byrne could have stated whether he was ill or not and why he had given him leave. Mangal Singh was at the police station on the night of the 6th and was found there evidently ill by Kesab Lal. There is no evidence that he had left the police station between 6 and 7. Whether he and Nibaran had left the station between 6 and 7 P.M. could have been easily proved. Ryland, in fact, took down the statement of the 2nd Moherir of the police station to ascertain whether Mangal Singh and Nibaran were present at the station at the time of occurrence. None of these men were examined in Court and no evidence was given of their absence from the station. We cannot believe that Mangal Singh was at the scene of occurrence, and the failure of the case against him is fatal to the entire story of the prosecution. A great many of the links that would have constituted complete circumstantial evidence against the accused, fully supporting Makbul and Karim, are wanting in the case and the want must be ascribed either to gross negligence or. intentional omission. A great many of the links that would have constituted complete circumstantial evidence against the accused, fully supporting Makbul and Karim, are wanting in the case and the want must be ascribed either to gross negligence or. intentional omission. If Karim and Makbul had named Mangal, Nibaran and Dwarka Nath immediately after the occurrence as they did, nothing could have been easier than to ascertain at once where they were and what they were doing. Their complicity could have been easily traced then and there at the police station and Dwarka Nath's lodging house. The Magistrate or Byrne could easily have ascertained this. Nibaran's. gun could have been at once examined. But we do not know what Byrne did. It seems to us that Mangal Singh was implicated because he was a police-officer doing his duty at the troublesome time, and, therefore, rendered himself highly unpopular to a large number of Mahomedans of low class, and that Mangal Singh and Nibaran did not leave the station. The facts that the information of Makbul was begun to be recorded at 9 P.M. that the scene of the record was then shifted, and the record was not made until 11 P.M., that Mangal Singh and Nibaran were not sent for until later on, detracts from the value of that first information and throws great suspicion on the case. There is no reason why Nibaran, a writer constable, would take part in such a transaction. Makbul, in his evidence, shows he had reason for dragging him in as an actor in the criminal act 18. Circumstantial evidence which could have been adduced, if he was guilty, has also been withheld. His gun was at the gunsmith's and the gunsmith has not been examined. No one saw him carrying his gun on the 6th March, except Makbul. The idea of Ryland that Nibaran's gun had the appearance of having been recently fired has no foundation. We cannot rely on his evidence as being expert evidence on this matter. In fact the persons, as he says, before whom he examined the gun thought that it had been fired at least a month before and within a few days. The truth of the matter appears to be that Makbul's information was at first looked upon as untrustworthy by the authorities and Nibaran was, therefore, allowed to continue on duty until the 12th March. 19. The truth of the matter appears to be that Makbul's information was at first looked upon as untrustworthy by the authorities and Nibaran was, therefore, allowed to continue on duty until the 12th March. 19. We shall now say a few words as to Dwarka Nath. Makbul, Karim and some of the other witnesses speak of his presence at the scene and the rescue of both Nibaran and Lailt. But his case was that he was absent from the town at the time of the occurrence. Evidence was given to show that he had arrived at Comilla from Chandpur on the 5th March but there was nothing to show that he was seen on the 6th March at the town, except the statements of Makbul and Karim and the other witnesses to the occurrence. He had a gun at Amirabad, and it was brought from thence by the Police on the 10th but no attempt was made to show by evidence, either direct or circumstantial, that it had been brought to Comilla on or before the 6th. Nor was any attempt made on the morning of the 7th March after Dwarka Nath had produced his gun license to trace the gun at Amirabad. 20. We shall now consider the story of the so-called singed pieces of paper which are said to fit into the torn copies of the Hitatadi newspapers of the 23rd November found in Dwarka Nath's empty lodging house. If at the time of the discovery of the newspapers in Dwarka's house the house was vacant, as the evidence shows it was, the evidence of this discovery is practically valueless. it has not been shown that Dwarka Nath was a subscriber or took in the Hitatadi. The discovery of two papers of the same day is also significant. On the 7th no newspapers were found in Dwarka's house. They appeared on the 8th. Superintendent Byrne, who searched the house on the 7th, should have been examined on this point. We cannot place the slighest reliance on the circumstances with respect to this part of the case Evidence of motive either in Makbul or Karim implicating Dwarka Nath is no doubt wanting, but the motives of human action are not always easy to discover. The evidence as to the part Dwarka Nath took and his presence at the rescue of Lalit Doctor is conflicting. The evidence as to the part Dwarka Nath took and his presence at the rescue of Lalit Doctor is conflicting. Some of the witnesses say they saw him there, whilst others say they did not. We have already said that in our opinion Karim is utterly unworthy of credence as a witness. It is needless for us to go into greater details. The closeness of Dwarka Nath's house to the scene of occurrence may excite some suspicion but that may be the very cause why he was made to figure in the case by the witnesses. Dwarka Nath must have the benefit of the doubt which the evident falsity of the case as regards the other two accused has raised. The death of Syed Ali from the effect of gun-shot wounds at the hour and place as given by the prosecution is, it appears to us, the only undoubtedly proved event in the case. The other facts and circumstances are shrouded in darkness. Whence, why and by whom the gun or guns that deposited 60 shots "in Syed Ali's body were fired has not been proved by any evidence, direct or indirect. The truth has evidently been withheld. The circumstantial evidence is extremely weak and the investigation by the Police was evidently made on a wrong track owing to the falsity of the first information. It is deeply to be regretted that the real murderer or murderers of Syed Ali could not be discovered, but it is surprising that it did not strike Superintendent Ryland and the officers who were helping him that Mangal Singh and Nibaran and even Dwarka Nath had no motive to fire at Syed Ali whom, perhaps, they did not know or at any Mahomedan whatsoever. That they had nothing to gain by such an attack and that they had not even the intention of disturbing the procession in the street, is obvious. The guns were fired in the Chhatapati Road and whoever fired them was certainly actuated by a desire to protect property from the violence or apprehended violence of Mussulman rioters and not with the intention of killing anyone, though the result of the firings might be well known. The guns were fired in the Chhatapati Road and whoever fired them was certainly actuated by a desire to protect property from the violence or apprehended violence of Mussulman rioters and not with the intention of killing anyone, though the result of the firings might be well known. The story told by Makbul Ahmed to the investigating officers was so full and concise that they did not even think it necessary to examine the shop of Aswini Kumar De or the shop on the opposite side and view their condition. It did not strike them that Makbul's and Karim's stories were wanting in plausibility and could not easily be supported and the hand of fabrication was patent on them. In our opinion the accused, the Appellants before us, are not guilty. We accordingly allow their appeal and set aside the convictions and sentences and further direct that they be forthwith discharged.