1. The appellants in this case were placed upon their trial on charges framed under Sections 304, 304/109 and 323, Penal Code. The jury unanimously convicted the appellant Naimuddi under Section 326, Penal Code, and the learned Judge sentenced him to three years rigorous imprisonment The jury also convicted the appellant Bhasani under Section 326/109, Penal Code, and the Judge sentenced him also to three years' rigorous miprisonment. The appellants Kokai and Yusuf Ah were convicted under Section 323, Penal Code, and sentenced to rigorous imprisonment for BIX months. The case is the usual type of dispute between the two parties over pos session of certain land and the ownership of paddy grown thereon. As a result of this dispute, there was a collision between the two parties on the day of the occurrence, 6th April 1940, and two persons at least were injured on each side. One of the complainant's party a man called Shamuddi received a head injury said to have been caused by a chendao and died of his injury about four and a half months later. Two other members of the complainant's party sustained minor injuries and two at least of the appellants' side were more or less seriously injured.
2. The case briefly was that a certain beel in which the landlords of both parties were co sharer proprietors silted up and paddy waq grown on a certain portion of the reclaimed land. The complainant's party alleged that they grew the paddy and were cutting it when the appellants came and attacked them The case set up by the appellants in support of which evidence both oral and documentary was actually adduced was that it was they who had grown the paddy and that the complainant's party came to cut it before it was quite ripe with the result that there was a fight between the two parties in which injuries were sustained by both sides. Apart from the manner in which the actual facts were dealt with by the learned, Judge in his charge and his explanation of the law as applying to these facts, there have been a number of unsatisfactory features in the actual conduct of the trial itself. The trial took place at Dacca and at a time when the public peace was very much disturbed and it is now admitted that some of the defence witnesses who had been summoned on behalf of the appellants and who had actually appeared left the town before they could be examined and that this fact was brought to the notice of the learned Judge trying the case and he refused an adjournment which was pressed for on behalf of the accused persons.
3. Further, it appears from the history of the case that the investigating Sub-Inspector was ill at the time and could not be examined. His evidence in the lower Court was put in on behalf of the prosecution but an application on behalf of the defence to adjourn the case in order that he might be cross-examined was refused. Lastly, the document which has been treated in the case as the first information report was admittedly not the first intimation received by the police that the occurrence had taken place because the local Dafadar deposed that he heard the row, saw the injured men coming back from the beel, heard from them the story of the occurrence and lodged information at the thana. This information was followed by a visit from a local Sub-Inspector. No attempt however was made on behalf of the prosecution to produce the Dafadar's report. It is clear from the record of the case that because the only fatal injury inflicted did not result in death for some months after the date of occurrence the matter was not taken seriously for a considerable time and the formal first information in the case is dated 23rd April 1940 that is 17 days after the occurrence. In our opinion, therefore, it cannot be said that the trial was conducted in a satisfactory way. We are not satisfied that there may not have been prejudice to the appellants because of the facts mentioned above. Apart from that aspect of the case, the charge delivered by the learned Judge to the jury is not in our opinion a satisfactory charge. As previously stated, the appellant Bhasani was convicted of abetment of an offence under Section 326, Penal Code, the prosecution case being that Shammuddi was struck on the head with a chen dao by the appellant Naimuddi under the orders of Bhasani.
4. The sole evidence on this point, however, is contained in the statement of three witnesses who merely deposed that under the orders of Bhasani, Naimuddi struck the deceased. In dealing with the evidence the learned Judge says that the jury need only remember that the case for the prosecution is that it was under the orders of Bhasani that Naimuddi committed the crime. In other words, Bhasani instigated Naimuddi to commit the crime. Section 109 lays down that when a man abets an offence and that offence is committed in consequence of the abetment he is liable to be punished as the principal offender. This is what is meant by the charge under Section 109, Penal Code. The learned Judge made no reference whatever to the section which is really applicable namely Section ill, Penal Code, or to the position that a person is guilty of abetment provided) only that the act which he does is a probable consequence of the abetment and is committed under the influence of the instigation.
5. In the present case there is no indication in the evidence as to what Bhasani actually said, and nothing to show that he instigated the other men to strike the deceased on the head with a chen dao. In respect of the charge under Section 109/304, Penal Code, the explanation of the law is, therefore, inadequate. In another respect the charge in our opinion is open to criticism. In dealing with the defence version of the case the learned Judge says that the statements of the accused were read to the jury who all pleaded not guilty. They have also put in statement in writing the substance of which is that they were in possession, that the complainant's party attempted to cut the paddy and when Bhasani intervened he was assaulted, Naimuddi was also assaulted. The written statement was read to the jury. Now, the record shows that a number of defence witnesses gave a detailed account of the manner in which the accused party was attacked by the complainant's party. They said in effect that 40 or 50 persons had come upon the land to reap paddy, that an altercation with Bhasani followed and that he was assaulted. Some of them added that there was a general fight which undoubtedly must have been the case. There is no reference in the whole charge delivered by the learned Judge to this oral evidence and he merely deals with the defence story from the point of view of the question of possession of the land itself.
6. On that point his charge is alse somewhat vague and he does not give any clear direction to the jury as to the right of private defence arising from the possession of the land. We are accordingly satisfied that in the present case the verdict of the jury and the convictions and sentences based thereon cannot be maintained, in view of the defects already discussed both in the charge and in the conduct of the case itself. We accordingly set aside the verdict of the jury and the convictions and sentences based thereon. In view of the fact that two of the present appellants were convicted merely under Section 323, Penal Code, and have already undergone a term of imprisonment for more than six weeks we do not think it necessary or desirable that they should be retried. Further, we see no good reason that the appellant Bhasani against whom the only charge was that it was under his orders that Naimuddi assaulted the deceased, should be retried on a charge of abetment of an offence under Section 326, Penal Code. We, accordingly, direct that the ease of the appellant Naimuddi should be sent back for retrial under Section 326, Penal Code, and that the other appellants should now be discharged from their bail bonds. Naimuddi shall continue on the same bail pending retrial.
7. I agree.