1. In this case, the appellant Asgar Ali Mondal has been convicted on a unanimous verdict of the jury under Sections 304 (II) and 148, Penal Code, and has been sentenced to undergo rigorous imprisonment for ten years under the former section--no separate sentence being passed in respect of the latter. Appellants Afaz Mondal, Jabed Ali Mandal, and Abdul Mannan have been convicted under Sections 147 and 326/149 of the Code, and sentenced to rigorous imprisonment for four years under the latter section--no separate sentence being passed under the former. Appellants Abdul alias Abul Hossain Mandal and Sobhan alias Abdul Sobhan Mondal have been convicted under the same sections and sentenced to undergo rigorous imprisonment for two years each under Section 326/149, no separate sentence being passed under Section 147 of the Code. The prosecution case was that one Gani, brother of the first three appellants, was on inimical terms with them, and that he had started criminal case against Jabed. Ansar (P.W. 1) had instituted another criminal ease against Asgar, and there was an enquiry on 18th January 1943. After the enquiry, at about noon of the same day, as Gani and Ansar were coming out of their houses they were attacked by the accused Asgar being armed with a knife and others with other weapons. Ansar escaped without injury, but Gani was caught up at the house of one Nasu and then was stabbed in the abdomen by Asgar with the knife. Gani subsequently died. Charges were framed against Asgar under Sections 302 and 148, Penal Code, and against the other accused under Sections 147 and 326/149 of the Code.
2. The first point raised on behalf of the accused is that as there has been a murder charge, the jury was improperly constituted as it consisted only of seven jurors. The order-sheet shows that 18 jurors were summoned of whom only seven attended. Out of these seven, objections were made with respect to two of them ; another was excused on the ground of illness; the remaining four were empanelled and then three other gentlemen were found in the court precincts whose names appear in the list of jurors, and they were duly sworn in as jurors. The order sheet does not in terms state that it was not found practicable to find two other jurors. On the other hand, there is nothing to show that the accused themselves made any objection or alleged that suitable persons were available so that it might be practicable to form a jury of nine persons. In the grounds of appeal to this Court as originally drafted, no mention was made of this point, but a ground was added in the form 'that the trial should have been held by nine jurors.' There is no averment in the petition that it was, in effect, practicable to obtain nine jurors. In our opinion, the facts stated show clearly that it was not practicable to obtain more persons, and, in fact, that it was probably a matter of good fortune that a jury of seven persons even was able to be empanelled. It is desirable, that where nine jurors are not empanelled on a murder charge, the order sheet should show expressly that the Judge considers it not practicable to obtain more, but a failure to note this in express terms cannot be fatal to the proceedings. Moreover, the proper time for objection to be taken that further jurors are available and that it is practicable to obtain nine persons is at the time when the jury is being empanelled, and lastly, if an appellant desires to make a substantial objection on this ground, his petition should indicate that at least there are materials to substantiate his case that it was so practicable. It is also desirable that the attention of the Court should be drawn to this matter when the application for admission of appeal is moved in order that if necessary an explanation may be obtained from the trial Judge. In the present case, we think that there is no substance whatever in this objection.
3. The next criticism offered in regard to the charge is that the learned Sessions Judge failed to set out fully before the jury the defence case in regard to the matter of the evidence given by Dr. Upendra Kumar Choudhury (P.W. 13) in regard to the dying declaration said to have been made to him by Gani. The doctor's case is that he recorded Gani's statement and kept it -- sending information to the thana about the case but not mentioning the fact that any statement had been made by Gani. He did not mention the statement to the investigating officer, but mentioned it to the public prosecutor before the trial in the Sessions Court. The actual record of the statement was put in as Ex. 6 by the same in the course of cross-examination -- the doctor having used it to refresh his memory, in giving evidence as to what Gani said to him. On the next day after the doctor had been examined, the defence filed a petition for it to be noted that Ex. 6 bore no perforation marks. A note of the objection has been made in the order sheet, and the learned Judge states that he had noted two marks of perforation in corresponding places of two sheets apart from others at crossfoldings. He adds that there had been a suggestion at the time of the cross-examination of the witness the previous day that the papers did not contain perforations, but the sheets were not placed before the Court for verification. The record of the cross-examination of the doctor shows that the question of perforations or absence thereof was not put specifically before the doctor; he was asked where he had kept the paper, and he stated on one occasion that he kept it 'in a box file,' and in another, he stated that the file was of the 'book type.' It appears to us that the defence can make no grievance in this matter, as they failed to have it cleared up at the time when the doctor was being cross-examined. The learned Judge in his charge has referred to the dying declaration proved by Dr. Choudhury pointing out that he is an M.B., a man of position and respectability, and stating that the question was whether the jury would believe him. He points out that the document purports to be signed by Gani, the jury could compare it with the admitted signatures of Gani proved in Court. He noted,
The only fact that can be said against the doctor is that this story of the recording of dying declaration was introduced in this Court for the first time.
4. He pointed out, however, that there was evidence to show that the doctor had in fact examined the deceased and that the police had referred to him at an earlier stage. The learned Judge then briefly referred the matter of the perforation. The investigating officer (P.W. 27), Sarat Chandra Banerjee, had mentioned in evidence that after receipt of the first document, from the doctor he sent a second requisition on 4th February 1943 to ascertain if Gani had made any statement to him, and that there was no note that he received any reply. It is fairly obvious that no reply was, in fact, received, and the learned Judge did omit to mention this portion of the evidence in connexion with this matter. We think that on the whole, the matter of this dying declaration was quite reasonably put to the jury. It cannot be said that there is substantial misdirection or non-direction regarding it. In any case, as the first information report itself was lodged by Gani and was itself, therefore, admissible as a dying declaration, and as there was yet evidence of another declaration made to another witness, and in view of the fact that the evidence in the case is mainly that of eye-witnesses to the occurrence, we do not consider that even taking strictest view of what was necessary to be stated in the charge with regard to the dying declaration to the doctor, it can be said that any possible misdirection or non-direction that might be held to have existed could have affected the verdict of the jury. The lawyers appearing for the accused in this case appear to have suffered in more than one instance from a sort of delayed action. Objection is now urged that the prayer to have the doctor recalled to prove post mortem examination, made on the day after he was examined and discharged, was refused. No substantial reason is even now set forth as to why the post mortem report was desired to be proved. In our opinion, there is no substance in this objection. Similarly with regard to the petition praying to put in the deposition of Ansar (P.W. 1) in the committing Court under Section 288, Criminal P.C. The prayer was made after the Public Prosecutor had closed his case and on the day following the delivery of a part of the defence argument. There was no cross-examination of the witness as to his having said anything in the committing Magistrate's Court contradictory to his evidence in the trial Court, and no reason was given why it was necessary to prove the deposition of this witness in the lower Court. This objection has also no substance.
5. The last point taken is there is inconsistency in the verdict in that the main accused has been found guilty under Section 304, Part II, Penal Code, while the remaining accused have been found guilty under Section 326/149. The answer to this objection is that the proper verdict as against Asgar Ali Mondal in the case should have been under Section 326 if the jury did not consider the case to be one under Section 302 or 304 Part I. The learned Judge was in error in omitting to charge the jury accordingly. He charged them to come to a finding either under Section 302 or Section 304 Part I, failing that Part II, according to their view as to the knowledge or intention of the accused. Gani was killed with a knife, a dangerous weapon. If the accused had knowledge necessary to justify a conviction under Section 304 Part II, he must have known that the injury intended to be caused was likely to endanger life; he must therefore have been guilty under Section 326 of the Code, an offence punishable with transportation for life, a major offence to that punishable under Section 304 Part II, for which the maximum is ten years' rigorous imprisonment. The correct direction was therefore that the accused was guilty under Section 326, Penal Code, if the jury did not find that the accused had the knowledge or intention requisite for a conviction under Section 302 or under Section 304 Part I. If necessary, we could correct the error by altering the finding to one under Section 326. We do not, however, consider it necessary to make this alteration. In the circumstances, the sentences imposed are not too severe. The result is that this appeal is dismissed.
6. I agree.