1. The appellants in this case,. Ram Gobinda Ghose, Dhokari Mistry, Dharani Rout and Kanti Mukherji were tried by the learned Sessions Judge of Birbhum and a jury, on the charge of murdering one Atul Singh. Another person, Phani Bhusan Roy, was charged at the same trial with conspiracy to murder Atul. No other charges were framed in the case. The charge of conspiracy against Phani Bhusan Roy was tried with the aid of the jury sitting as assessors, and the learned Judge acquitted him on that charge. On the murder charge, the jury, by a majority of 4 to 3, returned a verdict of guilty against the present appellants.
2. The case for the prosecution was briefly that one Furi Domi was the mistress of all five men. Latterly she transferred her affections to the deceased Atul Singh, who was the owner of a small rice business situated beside the Suri Ahmedpur road. Because of this, the appellants and Phani Bhusan conspired to murder Atul. On the 18th Asarh at about 4 to 4-30 P. M. the witness, Kali Moira was cycling along the road and took shelter from a shower in the verandah of Atul's shop. He saw the four appellants in the shop, two of them holding Atul, and the others armed with a dao and a katari respectively. They threatened him and he went off, but told the witness, Shankar what he had seen. That night the dead body of Atul was discovered in the shop by a chaukidar. There were two gaping wounds in the neck. The chaukidar had been called by the dead man's-servant, Bhandal Hari who informed him that he had taken Furi to Atul's shop that day at about 4 o'clock in the afternoon and had seen the appellants in a garden close by at that time. Bhandal came back some time later and called Atul, but as he got no answer he informed the chaukidar who entered the shop and discovered the body.
3. The case came up to the Court of Session in March. The witness, Kali Moira, then went back on the story he had told before the Magistrate in the committing Court and alleged that it had been extorted from him by the police. After a certain number of witnesses had been examined for the prosecution, the jury for some reason, not apparent on the record, were discharged, and the case came before another jury in April 1937. At this trial which has given rise to the present appeal, the witnesses, Kalo and Bhandal were declared hostile, and Puri Domi was not examined at all. The only evidence therefore directly connecting the appellants with the murder of Atul was the statement made by Kalo Moira before the committing Magistrate, the truth of which he denied in the Sessions Court on two occasions. While it is impossible to say, in view of certain decisions of this Court, that Kalo's statement before the Magistrate was not evidence, we are definitely of opinion that the learned Judge in his charge to the jury did not emphasize, in the way he should have done, the necessity for very great care and caution on the part of the jury before they decided to act upon a statement of such a character. The learned Judge did not moreover, in our opinion, lay sufficient stress on the very peculiar fact that the three most material witnesses in the case were declared by the prosecution to be hostile.
4. In support of the appeal, the learned advocate for the appellants has confined himself, very wisely in our opinion, to two specific objections to the charge. The first is that the Judge in several instances had admitted and put before the jury, evidence which was inadmissible or irrelevant. The second objection involves a point of law, and it is that in view of the provisions of Section 269 (3), Criminal P.C., the trial of the appellants on a substantive charge of murder, jointly with that of Phani Bhusan on a charge of conspiracy to murder, was not warranted by law. The first point taken is undoubtedly one of substance. In dealing with the evidence of one witness, the learned Judge said to the jury:
Sanat has deposed before you that Shankar told him that Kalo Moira had informed him that he (Kalo Moira) had seen Atul being murdered and Sanat has further deposed that he did not say as to who had murdered.
5. This evidence is undoubtedly hearsay of the most definite kind. The witness was deposing to a statement not made to him, but conveyed through a third party. No such evidence should have gone before the jury. Again the Judge, dealing with the evidence of Shankar, says:
Shankar says that Naran said that Purna Mukerji told him that Dharani's wife fell into a fainting fit on seeing Atul's murder.
6. This evidence is clearly and completely inadmissible. Again the learned Judge placed before the jury, evidence to the effect that witnesses had seen the five accused often taking liquor and bhang. It is difficult for us to appreciate the relevancy of such evidence to establish a charge of murder or conspiracy to murder. It is moreover impossible for us to hold that the admission of such evidence could be anything but prejudicial to the appellants. We agree therefore with the contention of the learned advocate for the appellants that the charge is bad in this respect. The legal point urged is that the provisions of Section 269 (3), Criminal P.C. do not apply to the case, and that the joint trial of Phani with the other appellants was therefore bad. Section 269 (3) runs thus:
When the accused is charged, at the same trial with several offences, some of which are, and some are not, triable by jury he shall be tried by jury for such of those offences as are triable by jury, and by the Court of Session with the aid of the jurors as assessors for such of them as are not triable by jury.
7. The plain meaning of the language used is that the procedure indicated in the section is applicable when the accused are charged with more than one offence, and when these offences are not all triable by jury. In the present case however, the facts are that no accused person was charged with more than one offence. One accused was charged with conspiracy to murder, a charge triable by assessors. The appellants were charged with murder, a charge triable by jury. There were only two charges framed. We are therefore of opinion that Section 269 (3) of the Code was not applicable in this particular case, and that the form of the trial was erroneous. Had the charges been, as they well might have been framed otherwise, the procedure adopted by the learned Judge could not have been challenged. Indeed we find it difficult to appreciate why a single person was charged with a conspiracy when his co-conspirators were charged with murder. Had all five been charged with conspiracy as they might have been, or had the alternative charge in the one case been one of abetment, as it would have been except for the existence of that much misused provision of law, Section 120-B, I. P. C, there would have been no necessity to have recourse to the clumsy and as it turns out, incorrect procedure adopted in this case.
8. In the result therefore this appeal must succeed. It is allowed accordingly, and the convictions of the appellants with the sentences passed upon them are set aside. In view of the nature of the evidence, and the circumstances referred to earlier in this judgment, we do not direct a retrial. The appellants are accordingly acquitted, and if in custody will be released.
M.C. Ghose, J.
9. I agree.