1. There are thirteen appellants in this case who were tried by the learned Additional Sessions Judge of Faridpore with the aid of a jury on charges framed under Sections 302, 302/109 and 201, Penal Code. The jury by a majority of 5/4 found the appellant Jogendra Nath Biswas guilty under Section 304(1), the appellants Rajendra Poddar and Sonaton Poddar under Section 304(1)/l09 and the remaining ten appellants all under Section 201, Penal Code. The learned Judge in accordance with this verdict sentenced Jogendra, Sonaton and Rajendra to seven years' rigorous imprisonment each and the remaining appellants to two years' rigorous imprisonment each. The material facts alleged by the prosecution were as follows : On the day of occurrence there was a quarrel between certain Karikars and Namasudras. A mob of Namasudras approached the local hat where the Karikars were. On their way to the hat they met two brothers Abdul Barek and Momen who were entirely unconnected with any of the previous incidents. The appellants Rajendra and Sonaton, it is said, gave orders to seize these two men whereupon one brother Momen ran away, the other brother Barek remonstrated whereupon the appellant Jogendra speared him in the chest and pinned him to the ground. The appellants Rajendra and Sonaton said that if he were dead he should be dragged away whereupon the appellants Banka and Dwijabar began to drag the body by the legs.
2. With regard to the rest of the appellants the only allegation made against them by the prosecution witnesses was that some of them stayed behind and others went with the two men who dragged the body. The body apparently was not seen again until the following Friday at noon when it was recovered from a tank in the beel. Upon these allegations the appellant Jogendra has been convicted under Section 304 (1), Penal Code, the appellants Rajendra and Sonaton for abetment of that offence and the remaining appellants under Section 201 of the Penal Code. We have been taken through the charge delivered by the learned Judge to the jury by the learned advocate appearing for the appellants and we may say at once that we are unable to find any misdirection or non-direction amounting to a misdirection in the learned Judge's charge in so far as it relates to the offence alleged to have been committed by the accused Jogendra. So far as can be gathered from the evidence the defence appears to be that there was a quarrel between the Karikars and the Nama-sudras in which the latter were the aggressors. The defence further was that the body discovered in the beel was incapable of identification and that it was not proved that it was the body of Barek. On this part of the case the learned Judge delivered a full and detailed charge to the jury. He emphasised the important point that the jury must be satisfied that the body found was actually Barek's body and in connexion with this point placed the medical evidence as well as the other evidence in the case fully and completely before the jury. He then gave a detailed analysis of all the materials bearing upon this question of identification of the body.
3. On the second question whether it was the appellant Jogendra who caused the death of Barek, the learned Judge's analysis of the evidence was equally full and fair. He pointed out to the jury that the medical evidence did not help in this ease and that their conclusion depended entirely upon the amount of weight they were prepared to attach to the evidence of the eye-witnesses who deposed that they saw Jogendra striking the deceased man with a spear in his chest and pinning him to the ground. Upon this point we can find nothing in the charge of the learned Judge to which exception can be taken and we are of opinion that in so far as the verdict under Section 304 (1), Penal Code, against the accused Jogendra is concerned the majority verdict of the jury cannot successfully be assailed. In dealing with the charge of abetment of culpable homicide made against the appellants Rajendra and Sonaton the charge delivered by the learned Judge is open to criticism. It should be remembered that the prosecution case on this point was that on the day of occurrence while the mob of Namasudras including the present appellants were making a hostile demonstration against the Karikars they were met by two brothers who had no connexion with either party. Then it is said that the appellants Rajendra and Sonaton gave orders to seize the two brothers whereupon one took to his heels and the other stopped and protested. At that moment the appellant Jogendra speared him through his chest and killed him.
4. In dealing with this evidence what the learned Judge said was, in the first place, that it certainly could not be said that in giving orders to seize Barek, Rajendra and Sonaton were guilty of instigating Jogendra to kill him. He went on to say that they could not be held to have engaged in a conspiracy to kill and in both these directions we think the learned Judge was perfectly right. He did, however, go on to direct the jury that if they were aware that the appellant Jogendra was going to strike Barek and were in a position to prevent him they were guilty of abetment of the offence committed by Jogendra. In our opinion this direction given by the learned Judge to the jury was clearly wrong. On the evidence as it stood there was nothing to show that the other two appellants instigated Jogendra to commit the offence of which he was convicted or helped him in any way to do so. Mere failure to prevent the commission of an offence is not by itself an abetment.
5. It remains to consider the case of the ten. appellants who have been convicted under Section 201, Penal Code. The evidence on that point is extremely meagre. The case stated to the jury was that after Barek was speared Rajendra and Sonaton said that if he was dead he should be dragged away. Then the appellants Banka and Dwijabar began to drag the body by the legs. Some of the other appellants went with it and some remained. Those who remained interfered when the prosecution witnesses tried to follow the people with the body; It is thus clear that the specific case made out against these ten appellants was that two of them dragged the body away by the legs. Every thing else in this part of the prosecution story is, as the learned Judge took pains to point out in a later portion of his charge, extremely vague, and although the case was that a local chowkidar arrived on the scene at once and was sent to get the body he never came back and the body was actually not discovered until the following Friday, three days later. The ten appellants have been convicted on the finding that they knowing or having reason to believe that an offence has been committed caused evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment. The charge delivered by the learned Judge on this part of the case does not, in our opinion, deal adequately with this charge specially in view of the wholesale method in which the appellants had been involved. Moreover, there is a definite misdirection in what the learned Judge actually says to the jury in regard to this charge. He told the jury that if they believed that Barek was killed by Jogendra, then the offence under Section 201, Penal Code, would be completed as soon as the accused dragged away the body at all, quite apart from the final disposal of the body.
6. We are unable to accept this direction as a proper and adequate explanation of Section 201, Penal Code. The essence of an offence under that section is the causing of evidence of the commission of an offence to disappear and it cannot be considered correct to say that the mere moving of a body amounts to causing the disappearance of evidence of an offence. The learned Judge confined his analysis of this particular charge to the case of the two appellants who were actually said to have moved the dead body from the place where the deceased originally fell and has not directed the attention of the jury to the specific cases against any of the other appellants. It would appear, as a matter of fact, that no specific allegations were made against any of these appellants in connexion with the disappearance of the body. All that was said on that point was that they were members of the crowd of Namasudras and that after the occurrence they either accompanied the men who took the body or stayed behind to see that the other party did not interfere with them. On evidence of this character it seems to us to be reasonably clear that there could be no conviction of the individual accused upon a charge under Section 201, Penal Code.
7. In the result we are of opinion that the conviction of the appellant Jogendra under Section 304 (1), Penal Code, in accordance with the majority verdict of the jury and the sentence passed upon him under that section by the learned Additional Sessions Judge must be maintained and his appeal dismissed. The conviction of the appellants Rajendra and Sonaton under Section 304 (1)/l09, Penal Code, must be set aside as also the conviction of the remaining appellants under Section 201, Penal Code. In the circumstances of the particular case we do not think it necessary to direct a retrial of these appellants on any of the charges framed against them. In the result they will be acquitted and released from custody forthwith or, if on bail, discharged from their bail. The appeal of the appellant Jogendra is dismissed.
Mohamed Akram, J.
8. I agree.