Emperor vs Azhar Mian

Rowland, J.—Azhar Mian has been convicted by the Sessions Judge of Purnea of the murder by throttling of his step-son Yusuf, a boy of 3 or 4 years of age. The case comes before us on reference for confirmation of the sentence of death and also on appeal by the prisoner. The conviction is not supported by any direct evidence of the act and rests on inferences from circumstantial evidence.

The undisputed facts are that the accused Azhar, a widower with two children, in Savan last, married Tamidan, a widow with three children, of whom the eldest remained living with her brother and the two younger ones, Hali aged 5 and Yusuf, came with her to live with the accused. On 30th September 1935, in the afternoon Azhar went out taking with him his own son Basiruddin and step-son Yusuf for the purpose of bringing home his cattle grazing in the field. He returned carrying Yusuf and leading Basiruddin by the hand. Tamidan says that Yusuf was already dead. The accused says that the boy died soon after. At any rate some attempts were made to revive him by giving him water and by pushing wick up his nostrils to make him sneeze but to no effect. The accused stated then what he has adhered to throughout that the boy had fallen down and had a fit from which he died. This explanation was at first accepted. The witnesses Samad, Turab, Bahar Ali and Musan attended at the burial of the boy which Azhar performed that evening. Bahadur Ali was told by Tamidan that Azhar had taken a healthy child with him but brought him back dead and had gone to bury him. To another witness Sheikh Mahru, however, she said that the accused had killed her son. Mahru and Bahadur Ali then caused a message to be sent through Mahamuddin to the Police outpost at Gunjuria from whence word was sent to the Police Station at Islampur. Meanwhile Azhar who did not abscond was detained. The police after obtaining the necessary order from a Magistrate got the body exhumed and sent for post mortem examination. The whole prosecution case hangs on the result of that examination.

The Sessions Judge thought that the appearances as found could only be explained by homicidal strangulation and that the accused was the only person who could have had the opportunity to commit the crime. The four assessors with whose assistance the trial was held were all of the contrary view and gave their opinion that the accused is not guilty. As I have said there is no eye-witness of the crime. The boy Basir who must have been present has not been examined and it does not appear that the police made any attempt whatever to obtain his statement. It may have been assumed that he was too young to be examined but the attempt should certainly have been made. The post mortem appearance were those of death by asphyxia, that is to say, there was frothy blood coming out of the mouth and nostrils; the tongue was protruded and had been bitten by the teeth; the veins of the face, neck and upper part of the chest were dilated; there was congestion in the scalp membrances, brain, larynx, trachea and lungs. There were four bruises, one was just outside the left eye, one was on the left side of the lower jaw, one over the right angle of the lower jaw and one on the centre of the front of the neck. It is extraordinary that whereas the accused had said at once and had repeated before the Magistrate and the Sessions Judge that the boy had died by a fit, the pleader who defended him at the trial put no question to the doctor to test whether the post mortem appearance were consistent with those of death by epilepsy. He directed his cross-examination to the possibility of death by snake-bite for which there does not appear to have been any foundation whatever.

We have referred to the works on medical jurisprudence by Chevers, Taylor and Lyon from which we find that epilepsy causes death by asphyxia with symptoms of suffocation such as I have described. The bruises on the neck no doubt suggest violence but the medical works I have referred to describe cases in which epileptics have been known in the struggles of choking to clutch at their own throats and the marks on the jaw and neck are therefore not entirely conclusive. Taylor points out that in homicidal strangulation one usually finds a much greater degree of violence used than is necessary to cause death. The bruises on the deceased boy were small in area and no injury to the larynx and trachea was found. At the trial the inferences from the post mortem appearances were sought to be supported by some evidence as to motive and conduct. Tamidan says that accused looked after his own children and neglected hers, that he used to threaten to kill her children if she neglected his children and that he used to beat her. It seems to be true that accused beat his wife; she was found to have some bruises on her left leg, but her brother Gauhar Ali''s evidence does not support the story of ill-treatment of Yusuf, and it is unsafe to rely too much on Tamidan''s statement that accused had threatened the boy''s life.

The conduct of accused in bringing the boy straight home and attempting to revive him does not suggest guilt. The burial the same night is referred to as indicating haste to suppress evidence of a crime, but it does not seem to have been so regarded at the time. I have pointed out that four witnesses against whom no suggestion of complicity is made assisted at the burial. There was one incident that evening; the accused took six silver ornaments (tars) from his wife and gave them to Mahru, It is said that this was done to induce Mahru to hush up the matter. This certainly suggests that accused was anxious to avoid a police inquiry but a police inquiry is always regarded as a harassment, and anxiety to avoid it is not necessarily an indication of guilt. On consideration of all circumstances it seems to me by no means certain that the accused committed the crime with which he was charged. The Assistant Surgeon who held the post mortem examination gave his opinion in these terms: "Death was probably caused by asphxia which may have been caused by throttling." The caution with which he expressed himself was justified. I would accept the opinion of all the assessors and hold the accused not guilty. I would allow the appeal, discharge the reference and acquit the accused. The tars Exs. 1 to 6 should be returned to the accused.

Mohammad Noor, J.

I agree.