1. This is an appeal against a conviction of 3 accused by a majority verdict of 3 to 2 of an offence under Section 364, Penal Code. The accused have each been sentenced to 6 years' rigorous imprisonment. The case was tried by an Assistant Sessions Judge. The prosecution case is that there had been enmity between the deceased Kalu and the 3 accused and that the two parties had been working in their fields during the day time. After dark the 3 accused were found holding the deceased Kalu captive and leading him away from his field forcibly. Some cries were heard. Kalu did not return home that night and on a search being organised his dead body was found the next morning a little to the north of his land under a heap of straw. Obviously, the prosecution case must be that the 3 accused either themselves murdered the deceased Kalu or abetted his murder and that the murder was committed in consequence of the abduction, an offence under Section 302 or under Section 302/109, Penal Code, the punishment for which in each case may be the capital sentence. The offences are triable only by a Sessions Judge. This jurisdiction cannot be avoided nor can jurisdiction be given to an Assistant Sessions Judge by dealing with the case as one under Section 364, Penal Code, as we have had frequent occasions to point out. Section 364 is mainly a special case of enhanced punishment for a particular type of abetment of murder. The enhanced punishment will be applicable even though the murder is not committed in consequence of the abduction.
2. The conviction and sentence are accordingly set aside and the case is remanded for retrial by the Sessions Judge of Jessore or any other competent Court to which he may transfer it. The accused should be tried under Section 302 or under Section 302/109, Penal Code as the trial Court may think fit.