1. The appellant Jaddu was charged before the learned Sessions Judge of the Benares District with an offence under Section 302, Penal Code. He was convicted of an offence under that section and sentenced to death. The appellant Ghurbari was charged with abetment of the offence committed by the appellant Jaddu and he was found guilty, convicted and sentenced to transportation for life. Against these convictions and sentences each appellant has preferred an appeal to this Court and the record has also been forwarded to this Court for confirmation of the death sentence passed on the appellant Jaddu.
2. The charge against Jaddu was that he together with one Kishun, who became an approver in the case, murdered one Zahur Khan at about a ghari before sunset on 7th April 1934, on the bank of the Ganges near the village Bargawan. The charge against Ghurbari was that he instigated and abetted the crime and that he was actually near the scene of crime when it was actually committed.
3. The case against Jaddu was that he was guilty of premeditated and brutal murder and against Ghurbari it was alleged that he had actually planned it and had used his influence to get Jaddu and Kishun to commit it. Further it was said that Ghurbari brought Jaddu and Kishun to the scene of the murder and remained near by apparently to see that ids instructions were faithfully carried out. The learned Sessions Judge accepted the case for the prosecution and sentenced Jaddu to death, whereas Ghurbari was only sentenced to transportation for life. In the circumstances of this case it is difficult to understand why Jaddu was sentenced to death, whereas the person who instigated and planned the whole affair was only transported for life. In our judgment if the case for the prosecution was proved, the appropriate sentence on both was a sentence of death. It is true that Ghurbari did not actually wield the lathi which caused the death of Zahur Khan, but without his instigation and without his influence over Jaddu and Kishun this crime would in all probability never have been committed. In those circumstances it was impossible to attribute a lesser degree of guilt to Ghurbari than to Jaddu. The learned Sessions Judge in summing up the case against Jaddu said that it was clear; whereas in the case of Ghurbari he said the prosecution case was not quite so strong. It was apparently for this reason that he sentenced Jaddu to death arid transported Ghurbari. The Indian Penal Code provides 2 penalties for murder, namely, death and the lesser penalty of transportation. The lesser sentence was never intended to be imposed in a case where there appears to be some doubt. If the Court at the end of a case is left in any reasonable doubt about the matter it must acquit, but on the other hand if it is left in no reasonable doubt concerning the guilt of the accused the appropriate penalty must in all cases be imposed. Where there is a doubt in a murder case the Court should not and cannot pass a sentence of transportation for life. If the doubt amounts to a reasonable doubt the accused must be acquitted. If there was a doubt in the mind of the learned Sessions Judge concerning the guilt of Ghurbari he ought to have been acquitted, but on the other hand if there was no doubt in his mind concerning the guilt of this appellant he should have been sentenced, to death. In our judgment there was no justification whatsoever for differentiating between the guilt of the two appellants in this case.
4. Having regard to the view which we took at an early stage of the case for the prosecution it was unnecessary to issue notice upon Ghurbari to show cause why his sentence should not be enhanced, but on the other hand if we were not satisfied of the innocence of Ghurbari we should have had no hesitation whatsoever in serving such a notice upon him and if we were eventually satisfied of his guilt of imposing a sentence of death. (His Lordship then dealt with the prosecution case and after examining the prosecution evidence proceeded). In the result therefore we allow the appeals of Jaddu and Ghurbari and direct that the convictions and sentences passed cm them be set aside and that they be set at liberty forthwith unless required by the authorities upon any other charge.