Sharpe, J.:— This Reference Case No. 9 of 1945 and the connected Appeal No. 616 of 1945 preferred by Abdul Kader, as well as the jail appeals preferred by Abdul Kader, Fazil Bepari and Kalu Mia have been heard together. All the Appellants have been found guilty under sec. 302, I.P.C, by the unanimous verdict of the jury and sentenced to death by the learned Sessions Judge of Rajshahi. Each of the Appellants has also been found guilty under sec. 120B|302, I.P.C and in addition Fazil and Kalu have been found guilty under sec. 201, I.P.C, by the unanimous verdict of the jury and they have been convicted under those sections, but no separate sentences have been imposed, because of the sentences of death, imposed for the major offence, which have been referred to this Court for confirmation.

2. The prosecution case and evidence are briefly as follows:— On Thursday, 2nd November,-1944, Aniruddin, Vice-President of the Lakshi-pur Kholabaria Union Board, was called from his house about 9 A.M by a man who was at first unknown but who subsequently transpired to be Ramjan Sardar, Chaukidar, P.W 7. He did not return that evening or the following day; so his son, Hossain, P.W 1, began to make enquiries, but without any success. On Saturday, he continued his enquiries at the Hat and there met the President of the Union Board, Abdur Rahim, who advised him to give information at the Thana that his father was missing, but without mentioning any one as suspected in that connection. Accordingly, on Sunday, 5th November, Hossain went to the Thana and lodged information that his father was missing and that he did not suspect any foul play. On the following Tuesday, however, Amiruddin Bepari, P.W 4, father-in-law of Hossain, was sent for by Kader Pramanik, P.W 9. Kader informed him that he had learnt from his brother-in-law Kalu Haider, P.W 10, that Fazil Bepari, who lived in his house, had told him that he (Fazil), Abdul Kader and Kalu Mia had murdered Aniruddin at the instigation of Abdur Rahim, President, Union Board, who had promised them Rs. 1,000 as a reward. Amiruddin communicated this information to Hossain and asked him to search the jungle of Diara Saturia where the murder was said to have been committed. He himself proceeded to the thana on the 8th November, and, he says, told the S.I Barhanuddin Shaikh, P.W 31, what he had heard. No note of this information was however made in the Station Diary. The S.I came to the locality on the evening of 9th November, and apparently was then shown some blood marks and saw marks of struggle near a bamboo grove where the murder was supposed to have been committed. Next day he again visited that place and examined some witnesses, including Amiruddin Bepari and Kalu Haider from whom in formation about the commission of the murder had been received. Thereafter Fazil and Kalu were “produced in custody and on 11th November, apparently they made certain statements to” the S.I In pursuance of those statements, ac cording to the prosecution, Fazil and Kalu took the S.I, who was accompanied by a number of witnesses, including P.Ws 1, 3, 4, 20, 24 and 25 to the bamboo grove where the blood marks had been found. Then they took the S.I and his party to a place in a Khasia field about a mile away where, they stated, they had cut the dead body into pieces on a piece of wood. A piece of wood, Ex. VII with marks of cutting and blood was found at this place and also some small pieces of bone (Ex. VIII) and a piece of string (Ex. IX) which Hossain identified as having been worn by his father round his waist. Next Fazil and Kalu stated that they had thrown the fragments of the body into the river, and took the party to a place on the river bank where they further said they had buried the clothes of the deceased. They dug up this place and produced a dhuti (Ex. XII), a shirt (Ex. XIII) and a fatua (Ex. XIV) all of which were identified by Hossain and his mother Raimannessa, P.W 2, as having been worn by the deceased Aniruddin. A search was then made in the river at this place and a portion of a foot was recovered. According to the medical evidence, the bones were probably those of a human skull and the portion of foot that of a male aged about 50. These were sent to the Chemical Examiner, whose report confirmed that the foot was that of an adult human being, possibly of a male, and that certain features of the skin suggested that the person was in the habit of wearing shoes. Evidence was adduced by the prosecution that the deceased used to wear shoes at times. Following the above-mentioned discoveries, investigation continued and eventually a charge-sheet was submitted against Ramjan Chaukidar, Abdul Kader, Fazil and Kalu. Thereafter on the prayer of the Court S.I, there was further investigation and a charge-sheet was submitted also against Abdur Rahim alias Abdul Rahim Sarkar, President of the Union Board. Enquiry, preparatory to commitment, was held by a 1st Class Magistrate of Nator. Apart from the evidence already narrated, the main prosecution evidence consisted in the statements of Bahar-uddin, P.W 5, and Rajab Pramanik, P.W 11. P.W 5 claimed to have seen the deceased Aniruddin being pulled down by a cloth round his neck and assaulted by Abdul Kader, Fazil and Kalu, and the President of the Union Board, Abdur Rahim standing near the spot. P.W 11 alleged he had seen 4 persons dragging Aniruddin and pushing him down and to have recognised Kalu and Abdul Kader amongst those four. Mahammad Ali Shaikh, P.W 12, deposed that Abdul Kader told him he had killed Aniruddin and asked for his help in disposing of the body. Bahar Akanda and Behu Molla, P.Ws 18 and 19, stated that they had seen Aniruddin going with Ramjan Chaukidar on the day on which he disappeared. Two other witnesses, Khairuddin Mandal, P.W 21 and Maniruddin, who was examined in the lower Court, stated that on a Thursday in the middle of Kartik they saw Fazil, Kalu, Abdul Kader and the President, Union Board, standing near a bend of a road. Aniruddin and Ramjan came there and joined them. From there Ramjan went off to the east whilst the other five persons proceeded towards the north.

3. Certain other witnesses were examined to prove enmity between the deceased and the Pre-sident Abdur Rahim and Abdul Kader, which it was suggested, supplied the motive for the crime. Other formal witnesses were examined and the Investigating Officers. Eventually Abdul Kader, Fazil and Kalu were committed to the Court of Sessions for trial under sec. 302 and these three accused and Abdur Rahim alias Abdul Rahaman Sarkar were committed for trial under sec. 120B|302, I.P.C, Ramjan Chaki-dar was discharged and was subsequently examined as P.W 7 in the Court of Sessions. He gave evidence with regard to calling the deceased from his house on the day of occurrence on the instruction of the President, Union Board, and of having taken him to a place North of Habitpur Hat where they met the President and the other three accused. There he left them, but later he again saw the President at a place on the road and at that time he alleged he saw the other three accused in the jungle where also he saw the dead body of Aniruddin.

4. In the Court of Sessions a further charge under sec. 201, I.P.C was framed against Abdul Kader, Kalu and Fazil. The trial was held with the aid of nine special jurors with the result that Abdul Kader, Fazil and Kalu were found guilty unanimously under sec. 302|34, I.P.C, all four accused were found guilty unanimously under sec. 120B|302, I.P.C and Fazil and Kalu were found guilty unanimously under sec. 201, I.P.C It does not appear that any definite verdict was given in respect of Abdul Kader under sec. 201, I.P.C, but the learned Sessions Judge acquitted him of that charge. The sentences imposed on Abdul Kader, Fazil and Kalu have been already stated. Abdul Rahim, the President, Union Board, was sentenced to transportation under sec. 120B|302, I.P.C, and he has made no appeal to this Court against this conviction and sentence. The other three accused have appealed and the sentences of death have been referred to us for confirmation in accordance with the provisions of sec. 374 of the Code of Criminal Procedure.

5. Each of the Appellants before us has been separately represented and we have heard the learned Advocates at length both with regard to questions of law and on the facts. Since however we have decided, for reasons to be recorded hereafter, that it will be necessary for us to order a retrial in this case, it will be unnecessary, and indeed undesirable for us to enter into the merits.

6. The main ground on which it has been contended by the learned Advocates for the Appellants that the trial is bad and the verdict of the jurors has been vitiated is that certain inadmissible evidence has been placed before the jury and that the verdict has been based on and influenced by that inadmissible evidence. In the first place, it is claimed on the authority of the decision in Faqira v. Emperor(1) that the evidence of joint discoveries, said to have followed the statements of both Kalu and Fazil, could not be admitted under the provisions of sec.?7 of the Indian Evidence Act; in the second place it is maintained that certain portions at least of the statements of the accused Fazil and Kalu which have been admitted in evidence do not relate distinctly to the facts thereby discovered and so could not be proved against them under the provisions of that section. We have heard the learned Deputy Legal Remembrancer who appeared for the Crown in regard to these contentions and are satisfied that they are substantial and must be accepted.

7. The position with regard to the admissibility in evidence of the statements of a number of persons leading to discoveries has been considered and discussed in the case of Emperor v. RafiqueUd-Din(2) and this decision followed with approval the earlier decision of this Court, Durlav Namasudra… v. Emperor…Opposite Party.(3) and the principle laid down by Mr. Justice Straight of the Allahabad High Court in the case of Queen-Emprsss v. Babu Lal(4). That principle was expressed in the following words, at p. 549 of the report: “I have more than once pointed out that it is not a proper course, where two persons are being tried, to allow a witness to state “they said this” or “they said that,” or “the prisoner then said.” It is certainly not at all likely that both the persons should speak at once, and it is the right of each of them to have the witness required to depose as nearly as possible to the exact words he individually used. And I may add, where statement is being detailed by a constable as having been made by an accused, in consequence of which he discovered a certain fact or ceriain facts, the strictest precision should be enjoined on the witness, so that there may be no room for mistake or misunderstanding.”

8. In the decision Durlav Namasudra… v. Emperor…Opposite Party. referred to above, the evidence to which objection was taken was given by a S.I of Police to the following effect: “At 4 P.M on 7th December, 1930, I examined Kolo, Karna, Abhoy and Durlav. I arrested them then and there on suspicion after their examination. On the forenoon of 13th July, 1930, I proceeded to Abdua tank with the accused Durlav, Kolo, Karna and Abhoy and certain other witnesses. I went to that tank in consequence of the information, given to me by all the four accused named above, that the dead body of Rai Namasudra was concealed in the tank with stones tied to it. On reaching the tank, a dead body was recovered from it from under water hyacinths almost in the centre of the tank.” It was held by their Lordships in that case that this evidence was inadmissible because the accused were not in custody at the time at which their statements were made. Apart from that objection however, it was held further that “the statements of the person other than the first person who made the statement cannot be used in evidence. The statement made by the first individual under sec. 27, and in the circumstances described, may be treated as evidence against him; but it is not allowable under the provisions of law to treat the evidence of the other persons who may have made statements of the description referred to in sec. 27 as evidence admissible under the provisions of that section ………. And it has always been held that the fact discovered should not De treated as having been discovered from the joint information of all the persons who may have made statements under sec. 27 and in the circumstances stated in that section. It has been laid down that it should be deposed that a particular fact has been discovered from the information of one person and this will let in, under sec. 27, so much of the information as relates distinctly to the fact discovered by reason of the statement made by that one person.”

9. It was with reference to these observations that Mukherji, J., stated in Emperor v. Rafique-Ud-Din: “There is one instance in which two of the accused persons are said to have jointly produced some of these articles. In leading evidence with regard to this part of the ease, no attention seems to have been paid to the salutary principle laid down by Mr. Justice Straight of the Allahabad High Court in the case of Queen-Empress v. Babu Lal, a principle which has been reiterated by this Court so recently as in the case of Durlav Namasudra… v. Emperor…Opposite Party. namely that where joint acts of several persons are sought to be proved, in order to ask the Court to draw an inference from such conduct, evidence should be led with some degree of particularity so that it may be possible for the Court to draw the necessary inference from the conduct of each one of the persons concerned in the act.”

10. In the case which we are now considering, there has been no attempt to indicate which of the accused Fazil or Kalu first made the statement which led to the discovery, or pointed out the place in which the different alamats were found. Indeed, the evidence adduced indicates that the statements were made jointly and the action was taken jointly, a state of affairs which, though not perhaps entirely impossible, is certainly distinctly improbable. Moreover, it is admitted that Fazil and Kalu had both made statements to the S.I which he had recorded separately and it was on the basis of these statements that these accused persons took the S.I and the witnesses to certain places and that the alamats were recovered. If, of course, the prosecution are in a position to establish that the statements or the action which led to the discovery were actually made, or took place, simultaneously, we do not think that evidence in regard to the simultaneous statements or the simultaneous action would be entirely shut out by the provisions of sec. 27 of the Indian Evidence Act, but there must be clear and satisfying evidence on this point such as will enable the Court to decide and to give a specific direction to the jury whether the evidence is admissible against both of the accused or against either and if so, against which. The learned Sessions Judge recognised the difficulty in this case and in the end of his charge attempted to explain to the jurors the position, in case they thought that either of the accused had made the statement first. The provisions of sec. 298 of the Code of Criminal Procedure however enjoin that it is the duty of the Judge to decide all questions as to the admissibility of evidence, and we do not think it was proper for him to put this matter before the jury in the manner in which he did, and to leave it to the jurors to decide whether this important evidence relating to discoveries was admissible against either of the accused Fazil or Kalu or against both. We realise of course, the difficulties in deciding in all cases which particular accused first made the statement or first took the action which in fact led to the discovery, and that there may be some element of unfairness in the admission of evidence of discovery against one accused, and its: exclusion against another, merely because the former accused happened to make his statement or took some action just a little earlier, but it has been consistently recognised that the provisions of sec. 27 of the Indian Evidence Act must be very strictly construed and the decisions of the Courts in regard to admissibility of statements made by more than one accused must be followed. We are not satisfied) that the evidence adduced in this case was sufficient to show that the evidence of joint statements was admissible against both Fazil and Kalu or whether any particular part of that evidence was admissible against either Fazil or Kalu, though it will be open to the prosecution in the retrial, which we propose to order, to satisfy the Court in regard to those matters, if it is in a position to do so.

11. Apart from the defect in regard to admissibility of joint statements, we are of opinion that certain portions of the statements which have been admitted were not admissible under sec. 27 of the Indian Evidence Act. It is only necessary to refer to the wording of sec. 27 to see that what is admissible is only so much of the information as distinctly relates to the fact thereby discovered. This question was examined in Superintendent and Remembrancer of Legal Affairs, Bengal v. Bhajoo Majhi(5) in which it was held that a statement made by an accused person while in police custody which contains a confession of guilt, as also supplied information in consequence of which a discovery is made, is not admissible in its entirety under sec. 27 of the Evidence Act but only so much of it can go in as relates distinctly or immediately to the discovery. In the case there under consideration, certain witnesses gave evidence that the accused had pointed out a place to the Sub-Inspector saying that he had murdered the deceased there, and then pointed out another place where he had thrown the dead body into the river. There was also evidence with regard to the recovery of certain clothes from this place, and the finding of blood marks at the place where the deceased was said to have been struck down. Their Lordships in that case accepted the view that the admissions said to have been made by the accused that he had killed the deceased and had thrown his body into the river were inadmissible and that all that could be admitted was so much as related to the actual discovery of the bloodstains and the articles of clothing in the river.

12. In a decision of this Court, Amiruddin Ahmed v. Emperor(6) a similar view was taken in regard to the admissibility of statements under sec. 27, and Mr. Justice Shamsul Huda cited as an illustration of the principle to be followed that “where an accused states to the police that he killed A with a knife and concealed the corpse at a particular place, the only part of the information admissible under sec. 27 is that relating to the concealment and not the murder.” In the case of Sulakhan Singh v. Emperor(7), it was held by the Lahore High Court that a statement by an accused to the police that he would point out the place where the dead body of the deceased was buried was admissible, but not his further statement that he had buried the body.

13. In the case before us there is the evidence of a number of witnesses and in particular of the S.I, P.W 31, that Fazil and Kalu said they had cut up the dead body in a Khasia field, that they had thrown the pieces of the body into the river and that they had buried the clothes of the deceased. It is quite clear that these statements did not relate distinctly to the facts thereby discovered. The facts discovered in consequence of the statements were merely that at a place in the Khasia field were found a bloodstained log of wood, some pieces of bone and a string said to have been worn by the deceased, that at a place on the river bank were found the clothes said to have been worn by the deceased when he was last seen alive and that a human foot which might have been that of the deceased was recovered from the river. These were certainly facts from which some inference as to the guilt of Fazil and Kalu might be drawn, but the statements that they cut up the dead body or that they buried the clothes or that they threw the pieces of the dead body into the river, direct admissions at least of the commission of an offence under sec. 201, certainly did not relate distinctly to the facts discovered. These statements, we think, were entirely inadmsisible in evidence, and they were of such a nature that we consider they must have influenced the jurors considerably in reaching their verdict. In his charge the learned Sessions Judge made this observation

“I personally believe that these articles could not have been discovered but for the information given by Kalu and Fazil and that their statement that they have cut off the body and thrown (it) into the river is of the highest importance so far as the charge against these two accused persons is concerned.”

14. In view of this direction the jurors could not but have placed great value on this evidence, and in our opinion, a verdict based, at least in part, on this inadmissible evidence cannot be sustained, and must be set aside.

15. We might note here that the learned Deputy Legal Remembrancer suggested that even if the statements, to which we have referred, were inadmissible under sec. 27 of the Evidence Act they could be admitted as made to third parties, i.e, to the witnesses other than the Sub-Inspector. We do not think this suggestion can be accepted. It is quite clear, we think, that the statements to which we have referred were in fact made by the accused to the Sub-Inspector and were heard by the witnesses only incidentally. In a recent decision of the Lahore High Court, Hakam v. The Crown(8) it was held that where an accused person makes a statement to another person in presence of the police, the question whether that statement was made to the other person or to the police is a question of fact and not of law. In the present case, there is no evidence that the statements were made to any persons other than the Sub-Inspector. He had already recorded their statements and it was in consequence of those statements that the accused took the Sub-Inspector and other witnesses to the places at which the discoveries were made. We cannot accept therefore the suggestion that these statements were really extra-judicial confessions. Even if they were, they would be excluded by sec. 26 of the Evidence Act, since the accused were in custody and no Magistrate was present.

16. We think it necessary to refer only to one other small point in the arguments advanced on behalf of the Appellants. It was contended that the explanation of sec. 34, I.P.C was inadequate and that the observation of the learned Sessions Judge that

“The prosecution has only to show that all the three accused persons were present together at, the time the murder was committed and need not, prove the part played by each of them in the actual murder,”

amounted to a misdirection. Taken from their context these words would, we think, certainly constitute a misdirection, but in view of the words which precede them, we think they probably do not represent the exact meaning of what was told to the jury. However, so that there may be no repetition of such a direction, we think it desirable to draw attention to the decision Fazoo Khan v. Jatoo Khan(9) in which it has been observed that

“all the accused persons cam be found guilty of an offence constructively under see. 34, I.P.C, only on a finding that each of them took some part or other in, or towards, the commission of the offence”.

17. It is true that to convict any particular accused constructively under sec. 34 of an offence, say of murder, it is not necessary to find that he actually struck the fatal blow, or any blow but there must be clear evidence of some action or conduct on his part to show that he shared in the common intention of committing murder.

18. For the reasons which we have stated above, we are of opinion that the appeals of Kalu and Fazil must be allowed and the verdict of the jury which we think to have been vitiated by inadmissible evidence and misdirection set aside. It follows therefore that the convictions and sentences passed must also be set aside and the reference rejected. It was contended by the learned Deputy Legal Remembrancer that the inadmissible evidence related only to the cases of Kalu and Fazil, but did not affect the case of Abdul Kader. We cannot agree. In summarising the evidence against the three accused, including Abdul Kader, the learned Sessions Judge referred specifically to the corroboration afforded by the circumstances leading to the discovery of the foot, clothes, etc., and we feel that the evidence which we hold to be inadmissible may well have influenced the verdict of the jury in its entirety. Moreover the misdirection in regard to the application of sec. 34, though of a minor nature, only affects also the case of Abdul Kader. We must therefore allow also his appeal and set aside his conviction and the sentence passed upon him, and reject the reference so far as he too is concerned.

19. If however the prosecution case is believed, there can be no doubt that a very brutal and deliberate murder has been committed, and although this Court is ordinarily hesitant to order a retrial, we think that even excluding the evidence which we regard as inadmissible, there still remains sufficient evidence, on which the jury, if they believe it, might reasonably convict the Appellants. For these reasons we think that these accused, Abdul Kader, Fazil and Kalu should be retried and we direct accordingly.

20. There remains one matter to be considered. In view of our decision that there must be a retrial of the three Appellants, it becomes necessary to consider whether any action is called for with regard to the fourth accused, Abdur Rahim, who has not preferred an appeal to this Court and in respect of whom there is no reference before us. The only charge against him was one under sec. 120B|302, I.P.C of which he has been convicted along with the remaining accused. With respect to that charge the learned Judge directed the jury inter alia as follows:

“The principal evidence as regards the charge of conspiracy is the evidence of the fact that a murder took place under such circumstances and that such accused persons took part in it.”

“If you disbelieve the evidence of Bahar, Rajab and Ramjan and find that the charge under sec. 302, I.P.C, is not proved, then there is practically no evidence of conspiracy, because if Kader, Fazil and Kalu are not murderers, the association between them and the President, Union Board, will not raise any suspicions.”

21. This direction, in our opinion, was correct, and it seems to us inconsistent that the question whether the present three Appellants committed the murder should be directed to be investigated, and at the same time, a conviction of another accused person of conspiracy, had on the basis that he and the Appellants conspired to commit the murder, as evidenced by the fact that the murder was committed in pursuance thereof, should be maintained. As soon as the finding of murder is set aside, the foundation of the conviction of conspiracy in the circumstances of the case, disappears. We think it also important to bear in mind that the conviction of the remaining co-conspirators of the charge under sec. 120B|302, I.P.C is being set aside, with the result that Abdur Rahim remains convicted of having conspired with the Appellants, while it remains to be found that the Appellants conspired with him.

22. In these circumstances, it does not appear to us right that we should be cognisant of the position and yet refrain from taking any action as regards the conviction of Abdur Rahim. In situations like the present, this Court has set aside the conviction of the non-appealing accused in exercise of its revisional powers without giving them any opportunity of being heard, and instances of the exercise of such powers will be found in the cases of Rajanikanta Barman v. Emperor(10), Broja Rakhal Mazumdar v. Empress(11) and Mir Mouze Ali v. King-Emperor(12). In all those cases, however, the result was that the conviction and sentences of the non-appealing accused were set aside and they were acquitted. Quite obviously therefore the orders were to their advantage.

23. But in this case, whilst we think the conviction and sentence of Abdur Rahim should, in view of our present decision, be set aside, we are also of opinion that he should be retried along with the other Appellants.

24. Since he has not himself raised any objection to his conviction end sentence there might, we feel, be some room for contention hereafter that an order for retrial would be an order to his prejudice, if he does not wish to be retried and so would contravene the provision of cl. (5) of sec. 439 of the Code of Criminal Procedure, if made without giving him “an opportunity of being heard either personally or by pleader in his own defence.”

25. In these circumstances, we direct that a rule should be issued upon Abdur Rahim alias Abdul Rahaman Sarkar and upon the Crown to show cause why his conviction and sentence should not be set aside and why he should not be retried. The rule should be made returnable by the 29th October next and the matter placed for hearing on that date. The retrial of the other three Appellants should stand over until the rale is disposed of.

Chakravartti, J.:— I agree.