1. This case also comes before us on appeal by the remaining nine accused referred to in Criminal Reference No. 81 of 1906 both against the conviction for rioting in the case tried with the aid of Assessors and against the conviction on the charge of murder tried by Jury.
2. The Sessions Judge framed the charge of murder himself upon grounds which do not appear to have suggested themselves to the committing Magistrate. It does not appear that he placed before the Jury the special circumstances which in his view would have brought the offence within the definition of murder contained in Section 300, Indian Penal Code. It dues not seem to have been put to the Jury in the charge, whether any of the intentions mentioned in this section were established as against any of the accused and the exceptions Nos. 1, 2 and 4 do not seem to have been explicitly explained to the Jury. The Sessions Judge directed the Jury to find that, if the offence of rioting were established, all the accused were guilty of murder. And this was manifestly a misdirection. For, before any one of the accused could, as a member of an unlawful assembly, be held guilty of a murder alleged to have been committed by any other member or members of that assembly, it was essential in the first place that the act or acts alleged to have constituted the murder should be proved to have been done with an intention such as is specified in Section 300 and that none of the exceptions contained in that section should be applicable to the case. Thus, by reason of the omissions we have noted, the Judge's charge is manifestly a misdirection and we have no alternative but to return the case to the Sessions Judge, in order to a new trial in which the Sessions Judge will have, as required by law, to place before the Jury a clear view of the essentials which it is necessary to prove, in order to constitute the offence of murder. It will also be his duty to explain to the Jury the exceptions which it will be open to the accused to plead should all the essentials specified in either of the paras 1, 2, 3, or 4, of Section 300, Indian Penal Code, be established.
3. The Sessions Judge seems to have intended to impress the Jury with the view that, if any member of an unlawful assembly caused death with the intention specified in Section 300, Indian Penal Code, it would necessarily follow that every member of that assembly would under Section 149 be guilty of murder. But the Sessions Judge omitted to lay stress upon the one essential point which must be established before Section 149 applies, viz., that the act done must be an act committed in the prosecution of the common object of the unlawful assembly or must be such as the members knew to be likely to be committed in prosecution of that object. This of course gave rise to an issue of fact, which it was the province of the Jury alone to decide. It was for them to say, whether, supposing murder was established against any member of the assembly, all the other members of the assembly had that murder as a common object or knew that to be a probable consequence of pursuing that object. That point has not been touched upon in the charge.
4. We are unable to follow the other directions in the charge that, if the prosecution failed to establish that the accused had for the common object to obtain the possession of the sheva room, the Jury must acquit and equally unintelligible to us is the direction that, if the rioting was established, a conviction for murder must follow as a logical consequence.
5. We arc unable to accept the decision of the Sessions Judge on the charges of rioting because it professes to be a decision based not on his own opinion, but to have been given under the supposed necessity of compliance with the finding of the Jury on the issue which was not properly before them as a Jury.
6. For these reasons, we must set aside the convictions and sentences and in sending the case back for retrial by Jury 'we must also return it for retrial in respect of the charge of rioting with the aid of assessors.