The Judgment of the Court was as follows:—

Sanderson, C.J:— This is a reference under sec. 374 of the Code of Criminal Procedure in a case which was tried by the learned first’ Additional Sessions Judge of Bakerganj and a jury and in which the three accused were found guilty of murder and were sentenced to death. There is also an appeal by the three accused. Two of the accused Durga Charan Byapari and Hasan Dewan were found guilty of murder by the unanimous verdict of the jury under secs. 302 and 34 of the Indian Penal Code and the other Alimuddi Mistry was found guilty of murder under secs. 302 and 149 of the Indian Penal Code. All three were found guilty on the remaining two charges, namely, under sec. 364 which is the section dealings with abduction with intent that the person abducted may be murdered or may be so disposed of as to be put in danger of being murdered, and under sec. 148, which is the section which deals with rioting by a person or persons armed with deadly weapons.

The first ground or rather the ground, upon which the learned Vakil, who argued the case on behalf of the accused, mainly relied, was, that the direction of the learned Judge to the jury was open to criticism. In my judgment the direction by the learned Judge to the jury is open to certain criticism and I have come to the conclusion that there are material matters which, as far as I can ascertain from the heads of charge to the jury which are now before us, were not brought to the attention of the jury. Before I deal with those matters attention should be drawn to the way in which the learned Judge dealt with sec. 34 of the Indian Penal Code. I am quite aware that the document, which we have before us is not more than “heads of charge to the jury” and I cannot accept the suggestion which was made by the learned Vakil for the accused, that the learned Judge said no more to the jury than what appears in the heads of charge. The case lasted, (if my recollection serves me right), for six days and the seventh day of the trial was reserved for the learned Judge's summing up; it was not until about 3 o'clock in the afternoon that the jury retired to consider their verdict. I therefore regard this document as no more than “heads of charge to the jury.” But even so, I may say that there are certain matters in the heads of charge which are open to criticism. In the first place, the learned Judge has stated as follows:— “Sec. 34 provides that where it is doubtful which of several persons has taken the chief part in any given crime committed in furtherance of the common intention of all of them, each of such persons is severally liable as if he alone had done the deed.” If the learned Judge intended thereby to be informing the jury as to what were the provisions of sec. 34, no one can deny that it is a misdirection, because the provisions of sec. 34 are not as stated by the learned Judge.

But I take it that the learned Judge was giving his own view of the meaning of the section. In my judgment it is necessary for a learned Judge to read the very words of the section itself to the jury, if he purports to give them what are the provisions of the section, and then, if necessary, to explain what is the meaning of the section. The learned Judge did go on to say: “in other words, it provides for those cases in which all help to commit, e.g, a murder, but in which it is, in the nature of things, difficult to say exactly whose hand actually caused the death of the murdered person.” It seems to me that in that sentence the learned Judge was on sounder ground; but even then, having regard to the first part of the direction, I regret to say that I cannot regard it as a satisfactory direction with regard to the provisions of sec. 34.

Then his only direction as to what constitutes murder is contained in one sentence “Murder is the intentional killing of another human being with malice aforethought.” That may be a comprehensive way of describing what the meaning of murder is but it is not the way in which learned Judges ought to charge the jury in this country. It is usual to refer to the sections which relate to culpable homicide and to direct the jury as to what is culpable homicide and in what circumstances culpable homicide amounts to murder. I should not however reject this direction to the jury by the learned Judge on this ground alone, if I felt quite clear that the misdirection had not occasioned a failure of justice. Further I do not approve of the last paragraph but one at page 40 of the paper-book where the learned Judge was dealing with secs. 302 and 149, viz.: “This charge is to some extent redundant, and strictly applies only to Alimuddi, for Hasan and Durga Charan are supposed to have been the actual murderers. By sec. 149 Alimuddi becomes a constructive murderer and liable for the substantive offence, just as by sec. 34 all these accused are equally liable for the murder, as though each of them had committed it single-handed.” In my judgment if the charge was, in fact, delivered to the jury in those words or in words which would convey that meaning, in my opinion the jury might misinterpret it and they might have been thereby induced to come to the conclusion that there was no more to be said about the matter. In my opinion, this amounts to a misdirection.

The next paragraph is material in another respect. The learned Judge was dealing with sec. 148 and said: “Similarly, though all three are charged with rioting armed with deadly weapons under sec. 148, Indian Penal Code, it appears from the evidence that the charge will only apply to Alimuddi who was armed with a spear, the other two being unarmed.” In spite of that direction by the learned Judge the jury found all three of the accused guilty under sec. 148. This goes to show that apparently the jury had not appreciated the learned Judge's direction: in effect he directed the jury that only one could be convicted under sec. 148 and yet the jury found all three of them guilty under that section.

It is difficult to believe that all that the learned Judge said about the evidence is represented in his heads of charge: If it be a full and correct representation of his charge with regard to the evidence, then it appears that the learned Judge did not draw the attention of the jury to the fact that many of the witnesses who were called on behalf of the prosecution were related to Ananda, who was alleged to be the prime; mover in the prosecution, or to each other; nor did he draw the attention of the jury to the discrepancies in the evidence of some of the witnesses, discrepancies which certainly did occur.

Again, the learned Judge said: “The plot was apparently hatched on Wednesday and carried into effect on Thursday.” I have read the evidence carefully. I do not know what evidence is supposed to support the suggestion that a plot was hatched on Wednesday. The learned Counsel and the learned Vakil were not able to assist me on this point: there is the evidence of Iswar Charan Byapari who proved that at Sabdar's house there was a feast and that Alimuddi, Biraj All Jamadar, Kuti Mollah and Jabhar Ali were invited to it. Hasan Dewan is the son-in-law of Alimuddi and he lived in that house. The feast took place on Thursday and not on Wednesday and I do not find anything in that evidence which would justify the suggestion that any plot was then hatched.

Towards the end of the learned Judge's summing up he said, “the evidence is that Durga Charan had tied the cloth round the poor woman's neck at the time of the capture, and that so they dragged her away.” It is true that Swarna the woman who is alleged to have been present at the time the abduction took place, used the words “tied a cloth round her neck.” On the other hand, the first witness for the prosecution Nagarbasi said, “Durga Charan had put the upper part of her cloth round her neck and so had caught her” which may mean that he tied it or it may mean that he had merely wrapped it round her neck for the purpose of dragging her away. That by itself would not be so important but for the sentence which follows it: because the learned Judge says, “long before she got to the river she must have been half-choked, and it would require little more pressure to complete the suffocation.” That depends to some extent upon how the cloth was tied, and the learned Judge did cot draw the attention of the jury to this question. The learned Judge further said: “The jury must also take into consideration the admitted hatred that existed between the deceased and her husband's relatives and must ask themselves whether in their experience such hatred does not in nine cases out of ten, at any rate in Backergunj District, furnish a powerful motive for such a crime.”

In my judgment the learned Judge ought to have drawn the attention of the jury to the evidence of Nagarbashi with regard to this point; Nagarbashi said that as between Kalidas and the deceased there was a settlement of the dispute and it was called an amicable settlement, and he went so far as to say “there was no quarrel between them after the case between them was amicably settled last Assarh.” In view of this statement I fail to see how the Judge was justified in telling the jury that there was existing “admitted hatred.” Finally, the learned Judge directed the jury as follows: “As I have already said, which of those abductors actually applied the pressure that ended her life—if this was how she died—is immaterial.”

There were three men involved in the charge of murder. It seems to me that the attention of the jury should have been directed to the individual cases of the three men. As for instance, it may be that Alimuddi had no intention of murdering Nandarani, though he may have been willing to take part in the abduction of the woman; there is no evidence that he laid his hand upon the deceased though there is evidence that he assisted the actual abduction by holding back and threatening the would-be rescuers. For these reasons, in my judgment, it would not be right to allow the verdict of murder to stand in respect of the three accused. Consequently in our judgment, the verdict of murder and the sentences of death passed upon the three accused must be set aside.

That however does not dispose of the case.

The learned Vakil for the accused pressed us to remit the case for a fresh trial, but with regard to the charge under sec. 364, the learned Vakil frankly admitted that he could not say that there was a misdirection as regards that charge, at all events, so far as the two accused, Durga Charan Byapari and Hasan Dewan, were concerned; in my judgment there was ample evidence in this case to justify the jury in coming to the conclusion that these two men did abduct the woman and that they abducted her either with the intention of murdering her or with the intention that she might be so disposed of as to be put in danger of being murdered. The jury unanimously accepted the evidence in this respect, and there being no misdirection in respect of this charge as regards these two accused, it is not necessary to send this case back for a fresh trial, and in our judgment this Court should uphold the convictions of Durga Charan and Hasan Dewan in respect of the charge under sec. 364 of the Indian Penal Code.

With regard to Alimuddi I have considerable doubt whether the conviction under sec. 364 ought to be upheld. As I have already said, it is possible that this man may have taken part in the abduction without any intention of murdering the woman or putting her in danger of being murdered. The object of the abduction, so far as he was concerned, may have been something quite different. In this connection it is to be remembered that the evidence of Abdul was to the effect that he had seen two men only near the place where the body was found, and in our judgment it would be safer in the interests of justice to hold that in the case of Alimuddi, the conviction under sec. 364 should be set aside.

There remains the conviction under sec. 148. With regard to Durga Charan and Hasan Dewan, I agree with the learned Judge that there is no evidence that those two men were armed with any deadly weapon, or with any such weapon as is mentioned in sec. 148. Consequently, the convictions of those two men under sec. 148 must be set aside. The conviction of Alimuddi however under sec. 148 ought in our judgment to stand. He was armed with a deadly weapon and he was guilty of rioting. There was an assembly of five or more persons and on the evidence which has been accepted by the jury, there is no doubt that the common object of that unlawful assembly was to abduct the woman, and by means of criminal force, or show of criminal force, to compel the deceased woman to do what she was not legally bound to do. In other words, the case would come within the meaning of sec. 141, sub-cl. (3) or sub-cl. (5) of the Indian Penal Code. In our judgment therefore the conviction of Alimuddi under sec. 148 must stand.

The result of our judgment is that the convictions of all the three accused, namely, Durga Charan Byapari, Hasan Dewan and Alimuddi Mistri, for murder, and the sentences of death passed upon them are set aside. The conviction of Alimuddi Mistri under sec. 364 of the Indian Penal Code and the convictions of Durga Charan Byapari and Hasan Dewan under sec. 148 of the Indian Penal Code are also set aside. But the convictions of Durga Charan Byapari and Hasan Dewan under sec. 364 of the Indian Penal Code are upheld and the conviction of Alimuddi Mistri under sec. 148 is upheld. Under these circumstances we do not think it necessary to direct a new trial.

Now there remains the question of sentence. My learned brother and I regard this as a very serious case and it is such a serious case that we have had considerable hesitation whether we ought not to remit the case in order that there should be a further trial on the charge of murder, but after due consideration we have decided not to take that course.

Having regard to the facts of the case, the sentence we pass upon each of the accused Durga Charan Byapari and Hasan Dewan is ten year's rigorous imprisonment under sec. 364; and the sentence on the accused Alimuddi Mistri is three years' rigorous imprisonment under sec. 148 of the Indian Penal Code.

Panton, J.:— I agree.

S.C.M