1. This appeal is from Jail on behalf of Tirtha Bahadur linojal alias Kurtha Bahadur Bhojal who was convicted by the Additional Sessions Judge, L. A. D. Under Section 302, Penal Code and sentenced to transportation for life. The accused was tried along with another person by the name of Jay Bahadur alias Lama Nepali of an offence Under Section 302 read with Section 34, Penal Code and the Jury having returned a verdict of not guilty against the other accused and one of guilty against the present appellant Under Section 302, I, P. C. he was convicted and sentenced as aforesaid.
2. The prosecution case is that one Kalaram Kalita of Majirgaon or the Palasbari Police Station started for Malaibari, a place about four miles off from the Railway Station at Khetri, on 16-4-1952, a Wednesday, with some money in his possession but he had not as a matter of fact arrived at his destination and was found to be missing since then. Three persons Govinda Ram Kalita, Lohit Kalita and Kalaram Kalita were all co-villagers and they carried on a joint milk business at Malaibari where several Nepalees kept a 'Khuti' (a place where several herds of cattle are kept for dairy purposes) and accused Kurtha Bahadur was one of the Nepalee Khuti owners who lived at Malaibari and had milk business with Govinda and his partners.
P.W. Govinda deposes that they jointly owed some money to the Nepali Khuti owners and paid Rs. 505/- to Kurtha Bahadur on or about 13-4-1952 at his own village out of the outstanding amount and made a promise that on or about the 16th of April he would be going to Malaibari with more funds to make further payments to the Nepalees and adjust their account. Govinda actually proceeded to Malaibari on the 16th by a boat from Gauhati and Kalaram proceeded to the same place by train on the same day with about Rs. 1,500/- in his possession. Govinda heard at a place known as Kamalpur Hat on the next day — that Kalaram had not reached Malaibari and then he proceeded with one Satya there to and found that Kalaram had not reached the Khuti as was expected. He came to the Khetri Railway Station the next day and sent some persons to his native place to enquire if Kalarsm had gone home but there too he was not traced.
On 19th April, at 6-30 P.M. Govinda lodged an information at Gauhati Police Station that Kalaram, a partner of his in the milk business who had been to Malaibari with Rs. 1,500/- in his possession on the 16th April had not reached there and he further learnt that Kurtha Bahadur, a Napali of Hie same village had murdered him while passing through the jungle and had secreted his body. He further stated therein that Kurtha was kept confined by his villagers in the Khuti and he asked the police to take immediate steps in the matter. The police started for Malaibari on the same evening and in the morning following, that is on 20-4-1952, they arrested Kurtha Bahadur and another Nepali Joy Bahadur alias Lama Nepalee of a neighbouring village and seized oh identification by Kurtha Bahadur on both some clothes said to be the clothes seen in the person of Kalaram before his disappearance and par.t of a skeleton alleged to be that of Kalaram.
The clothes, however, were not sent to the Chemical Examiner for examination nor were the bones identified by the doctor or any independent witness to be those oi: Kalaram. There was an allegation that on the 19th April the accused Kurtha alias Tirtha Bahadur made a statement before the panchayat held by his co-villagers to the effect that he saw Lama Nepali cutting Kalaram and throwing away his body in the jungle near the path leading from Malaibari to Khetri Railway Station. There were some prosecution witnesses to say that Kurtha and Lama were variously seen on the 16th to have moved in the path leading from Khetri to Malaibari in the opposite direction and at times together. Accused Tirtha Bahadur pleaded not guilty and he denied to have made any statement before the panchayat either incriminating himself or any other person cr to have pointed out the alleged dead body or the clothes.
3. The only point we have to examine is whether the charge to the Jury contains any material misdirection by virtue of which the accused has been prejudiced in effect. The learned Additional Sessions Judge addressed the Jury rather at good length and dealt with some discrepancies occurring in the prosecution evidence but to my nrind, the learned Judge's charge was defective on most vital points.
The first point for consideration before the Jury was whether Kalaram was actually dead and Whether his death has been conclusively proved by the evidence on record. Next comes the question of culpability of the accused. The learned Judge tentatively suggests that the bones might not have been those of Kalaram because there were no identifying marks but he does not say what is to be inferred if the bones are wrong bones. Neither does he say that this is an essential point on which the Jury should come to a decision.
The learned Judge says that he read out the medical evidence to the Jury but surely he did not ask them to apply their minds as to whether the bones of a man murdered only four days ago could have been found in the condition in which they were found by the doctor who held the postmortem examination rather a scrutiny over the bones. Nobody speaks about any foul smell nor of any decomposed human matter lying about these scattered bones which were seized by the police from inside a jungle. The bones were dry and clean and they bore no marks of flesh. Most of the bones were dismembered from the trunk and the greater part of the human body was missing including the skull. In other words, there were some disjointed pieces of human bones dry and devoid of flesh. The glaze in the bones had disappeared and the ends were all rough. There was no sign of anti-mortem injury on the bones,
The members of the Jury undoubtedly had a right to think about this and they could have judged for themselves whether the bones of a man murdered on the 16th could have been in this condition on the 20th or 21st of April on which date the post-mortem examination was held. The witness going to the locality from where these bones were collected did not say that there was any foul smell in the locality or there were fermented blood or decomposed human materials near about the place. The evidence of the investigating officer is that the place from which this dead body and the clothes were seized were at a distance of 15 feet from the road and the prosecution evidence is that men used to pass that way from Malaibari to Khetri and nobody complains that there was any foul smell during those days even earlier to the bones being seized. In case the jury had come to the finding that these bones were bones of some other, person lying dead, they might have equally suspected the identity of the clothes which were lying thereabout as said by P.W. Govinda. It is well-known that if a material part of the prosecution story is found to be false or fabricated, the jury would be entitled to doubt the genuineness of the rest of the story or doubt the prosecution case itself. This was obviously such a factor to which the Judge ought to have directed the attention of the Jury and this omission is a material misdirection which in my opinion vitiated the charge.
4. There were some other misdirections though not as grave. The evidence led in Court has not supported fully as to what was stated in the F. I. R. and the learned Additional Sessions Judge failed to show that the story given in Court ware at great variance with what was stated in the report. There was no mention of any panchayat, in the P. I. R. nor about the statement alleged to be made by Kurtha Bahadur implicating Lama in the murder. If the object of the murder was dacoity, there is no reason why some money should have been found in the handkerchief left with the dead body as alleged. It ought to have been further pointed out to the Jury that nothing incriminating was found with the accused Kurtha Bahadur nor was any evidence adduced to show that in the meantime, he spent or squandered any big amount or was absent for any material time from his residence.
All that could be said in favour of the accused in this connection had not been said and only suspicion was raised against the accused by stating facts which were not even warranted by the evidence on record. The learned Judge says in his charge that the endichaddar bore cut marks but that is nobody's evidence. He further says that the clothes seized from the jungle had blood marks. But the police for reasons best known to them did not send these clothes or cuttings therefrom to the Chemical Examiner and in the absence of any evidence, the accused was surely prejudiced when the Judge said that these clothes bore marks of blood whereas the presumption ought to have been that, they did not contain such, marks. These unwarranted remarks prejudiced the accused to a great extent and his case was not (fairly placed before the Jury.
The learned Judge says at one place that 'when more than one person is charged with an offence read with Section 34, IPC a verdict of guilty against one only under the substantive offence itself apart from the section is not illegal even when the rest are found not guilty.' These lines spoken at the Close of the charge must have been very effective. But this gives the law in a very cryptic form and is capable of misinterpretation. The Judge would have been better advised to say that in case of one of the alleged perpetrators of the offence being found not guilty the other may be found guilty if the offence is proved to have been done by him on the basis of the evidence on the record, or in other words, he may be found guilty for such offence which is proved against him specifically.
In this case, the prosecution suggestion, rather than the story, was that the two accused who were jointly tried, Kurtha and Lama committed the murder.' In case Lama was found to be not guilty the jury was to apply their mind to see whether Kurtha alone did it or what part he took. The learned Junior Government Advocate appearing for the State argued before us that if the statement of the accused before the pancha-yat is believed and also the fact of his pointing out the dead body, — the Jury could have easily assumed that Kurtha knew where and how the murder took place. But either of these acts will not amount to proving the substantive offence of 'murder to have been committed by him. The knowledge by itself is not enough unless his participation in the crime is proved.
The Judge further failed to give proper directions on the point as to what would be the effect of the statement that the accused is alleged to have made in the panchayat, — and with what caution it ought to have been taken. The net result of all these misdirections has been that the Jury has returned a verdict which possibly they would not have were the materials properly placed before the Jury by the learned Additional Sessions Judge. In our opinion, therefore, there are grave misdirections which have vitiated the charge and the conviction, of the accused therefore must be set aside. There is as a matter of fact, very little evidence as to the murder of the man and practically nothing to connect the accused with the murder, except suspicion. In these circumstances, we see no basis for a retrial and we accordingly allow the appeal and direct that the accused be set at liberty forthwith.
Sarjoo Prosad, C.J.
6. I agree to the order proposed.