1. The appellants, six in number, have been convicted by that learned Additional Sessions Judge Jessore, on a verdict of the jury divided in the proportion of three to two. The Appellants 1 to 5 have been convicted under Section 366, I.P.C., and sentenced to seven years' rigorous imprisonment, while appellant 6 has been convicted under Section 368, I.P.C., and sentenced to three years' rigorous imprisonment. The charge on which appellants 1 and 4 were tried was for kidnapping and abduction. The charge against appellant was for abduction only, as mentioned in Section 366, I.P.C. Appellant & was jointly tried with the other five, for the offence under Section 368, I.P.C., as mentioned already. The first question that arises for consideration in the case before us is, whether the charges as framed and which the first four appellants had to meet were properly and legally framed. The question of framing of charges under 18. 366, I.P.C., has received the consideration of this Court on various occasions and the decisions in some of the recent cases: see in this connexion the case of Mafizaddi v. Emperor : AIR1927Cal644 and Isu Sheikh v. Emperor : AIR1927Cal200 , clearly indicate how charges under Section 366, I.P. C, in which kidnapping and abduction are both mentioned are, required to be framed. In the case before us, there can be no doubt that the charges as framed which four of the accused persons were to answer, were entirely defective in law and were not in accordance with the proposition clearly laid down by this Court in the cases referred to above. The charges against these accused were not legally framed, and they were, in our judgment prejudiced at the trial, on account of that.
2. The question of joint trial of the accused: Trial of appellant 5 charged for abduction as mentioned in 8 365, I.P.G. and not for kidnapping and abduction, for the commission of which offence appellants 1 to 4 wore charged and the trial of appellant 6 under Section 368 with the other appellants under Section 366 was a procedure which could not be supported. We are decidedly of opinion that the joint trial of this kind could not he supported. We are decidedly of opinion that the joint trial of this kind could not but have, and had in fact prejudiced the appellants in their defence. In the above view of the case before us the conviction of the appellants after a trial which was irregular and not in accordance with law, could not be maintained. It was necessary therefore to consider whether the appellants should be retried after proper charges have been framed against them according to law, a joint trial of all the appellants for separate and distinct offences being avoided in the interests of justice. The evidence in the case placed before the Court which was fairly summed up by the Judge in his charge to the jury, was not such as could lead to a unanimous verdict of the jury; the jurors were divided in the proportion of three to two. The Judge's order, recorded at the time of his passing sentence, indicates some disinclination on his part to accept of the jury, as returned. Taking everything into consideration, and confining ourselves to the evidence placed before the jury, we are not satisfied that the case before us is one in which a re-trial should be directed. In the result therefore the appeal is allowed. The conviction of the accused appellants in this case, and the sentences passed on them are set aside. The appellants are acquitted, and to be set at liberty, and discharged from their bail bonds.