1. The two appellants Dal Bahadur Karka Chetri and his brother Bir Bahadur Karka Chetri were tried of the charge of murder with the aid of a jury with respect to the death ot one Dal Bahadur Thapa Chetri on the night of 19-5-51, or more precisely in the early hours of 20-5-51. The accused were committed for trial under Section 302, I. P. C. but the learned Sessions Judge, L. A. D. altered the charges to one under Section 302/34, I. P. C. and the jury having returned a unanimous verdict of guilty against both the accused persons, the learned Sessions Judge passed a sentence of transportation against each of the accused persons and the appeal was initially filed from, jail by the accused persons but at the final hearing Mr. S. K. Ghose appeared for the appellants.
2. According to the prosecution, there was a 'Mel' or panchayat between the deceased Dal Bahadur Thapa Chetri and Bir Bahadur Kharka Chetri on the allegation that Dal Bahadur tried to entice away the wife of Bir Bahadur, but the panchayat not being satisfied as to the correctness of the allegation, no step was taken against Dal Bahadur and the parties were asked to live in amity. Since then, there was a sort of suppressed enmity between the parties and just before dawn in the early hours of 20-5-51, Dal Bahadur's wife went to ease herself to a small distance from her house keeping a kerosene lamp burning (kupi) inside her house and after giving her husband a warning that she was going out. From the place where she was easing herself, she heard her husband crying out as 'Kancha, Kancha' by which he meant his brother 'Tikaram and Dal Bahadur's wife Musst. Dronamaya at once hurried towards her dwelling house when she noticed two persons coming out of her house and they were recognised to be the two accused Bir Bahadur Kharka Chetri and Dal Bahadur Kharka Chetri who were her neighbour. On entering the house, she saw her husband in a pool of blood with a cut injury on his neck and she at once went out to the court-yard and shouted for Tikaram, her husband's brother and her own mother, Musst. Damayanti who lived there. All the three entered the house and Dal Bahadur who was dying told them that it was the two accused persons, Dal Bahadur Kharka Chetri and Bir Bahadur Kharka Chetri who had cut him. The injured man collapsed and died almost immediately after that and Dambar Bahadur, a neighbour, came to Dal Bahadur's house and he was sent immediately to bring Bhim Bahadur, a relation of the deceased's family and Tikaram went to call one Pravuram Mahajan, an influential man of the locality. By then it was morning and after having a talk with Pravuram, Tikaram. and Bhim Bahadur left for the police station at Sootea at a distance of about twenty miles from the place of occurrence and they covered a few miles on bicycle and the rest by a bus and reported at the 'Thana' about the incident near about noon. The police thereafter went to the place of occurrence, sent the dead body for post-mortem examination and started investigation. The doctor found on examination that there was a deep cut wound on the neck of the deceased which had severed the spinal cord in the fourth cervical vertebrae and the vessels on the right side of the neck were cut and there was another superficial injury on the right angle of the lower jaw and in the opinion of the doctor the minor injury might have been caused while causing the greater injury No. 1. The doctor further opined that the injured man could not have, in ordinary circumstances, alter receiving the deadly blow lived for more than ten minutes and he must have lost consciousness very soon.
3. The learned Advocate for the appellants has placed before us the charge to the jury which seems to be given at a considerable length dealing with the evidence both pros and cons. There has, however, been in our opinion, a Serious omission in the charge which might have materially affected the merits of the case and that is with regard to the dying declaration said to be made by the deceased Dal Bahadur Thapa Chetri before he expired. The learned Advocate for the appellants has drawn our attention to the cases reported in - 'Cyril Waugh v. The King' 54 Cal WN 503 (PC) (A), - 'Emperor v. Sashi Kanta' AIR 1930 Cal 754(1) (B) and - 'Emperor v. Premananda Dutt' AIR 1925 Cal 876 (C).
4. The Privy Council case reported in - '54 Cal W N 503 (PC) (A)' is an appeal from the decision of the Court of the Judicial Committee at Jamaica and it was observed in that case that it was a serious error not to point out to the jury that a dying declaration has to be admitted into evidence and relied on with some degree of caution as the person making the statement is not liable to cross-examination. This is a legal principle the soundness of which nobody will deny, that there should be due warning to the jury in the matter of acting upon what is known as -'dying declaration'. In - AIR 1925 Cal 876 (C), Justice Mukherji has dealt elaborately as to how a dying declaration should be dealt with and the case reported in - AIR 1930 Cal 754 (1) (B) is a case on the point. There it has been held that when there is no caution given to the jury as regards the weight and efficacy to be given to a dying declaration and the attention of the jury had not been drawn to the question of how far the other facts and surrounding circumstances proved in evidence might be said to support the truth or otherwise of the declaration, the charge must be held to be defective. In this case, the learned Sessions Judge has dealt with the defects and discrepancies in the evidence from various angles but the jury had not been addressed as to what importance they should give to the alleged dying declaration of Dal Bahadur Thapa Chetri in the course of which he was said to have disclosed the names of the persons who attacked him. In view of the order that we propose to pass in this case, we need not deal with the case as to its merits. In our opinion, the charge is defective in this respect that no warning had been given to the jury as to the weight to be put upon the statement of the deceased as to the recognition of the persons who attacked him and how far that could be relied on for the purpose of convicting the accused persons. We, therefore, consider the trial to be unfair and we set aside the convictions and sentences passed upon the appellants.
5. The learned Advocate for the appellants has contended that the matter should not be sent back for retrial by the jury and we should go into the evidence and judge for ourselves whether a case has been made out against the accused persons. In my view, that will not be the correct procedure because we are not expected to substitute our appreciation of the evidence when the accused has a right to be tried by a jury. The case reported in - AIR 1930 Cal 754(1) (B) on which the learned Advocate has put reliance was a case referred under Section 374, Cr. P. C., that is for confirmation of the sentence of death where the Judges had the right to go into the evidence themselves and decide the case on merits but the learned Judges refused to consider the evidence for themselves but sent the case back for retrial when they considered the charge to be defective. In my opinion, that is the correct course and in this case too, the proper course would be to send the case back for retrial as provided under the law. The appeal is, therefore, allowed and the accused should continue in jail custody till retried.
Ram Labhaya, Ag. C.J.
6. I agree.