1. The appellants have all been convicted of conspiracy to commit an offence punishable under Section 326, Penal Code. This was only one of many charges which were made against them: they were put on their trial in connexion with the alleged murder of a man named Rama. It is not really disputed that this man was set upon in a narrow lane in the town of Howrah and there murdered by somebody. In view of the course which the case took in the Sessions Court, it is not necessary to discuss the details of the actual murder. Now, the learned Judge unfortunately made some errors of procedure in dealing with the case. A charge of conspiracy is triable not by jury but by assessors. Thus instead of taking a verdict, he should have taken the individual opinions of the jurors and then proceeded to pronounce his own judgment. The appellants would then have had an appeal to this Court on the facts. Then again he did not ascertain the opinion of the jury sufficiently for him to determine the question of sentence. In the absence of a finding that the murder was committed as a result of the conspiracy, the maximum sentence would be one of seven years. Now, in this case, in which the jury almost certainly refused to accept the evidence with regard to the actual occurrence, there is absolutely nothing to show that the injuries inflicted upon this man were in any way the result of the alleged conspiracy. In that view of the case, a sentence of ten years' rigorous imprisonment could not be supported.
2. Now, the first contention raised on behalf of the appellants is that the learned Judge obtained this verdict of guilty-I may note it was the narrowest possible verdict of 5 to 4-in an irregular manner. What happened was this: There were a mass of charges and the jury were asked to state their verdict on each of them in the case of every one of the accused. As a result, they brought in a verdict of 'not guilty' on the whole lot in favour of all the accused. The learned Judge then proceeded to say: 'Have you got anything to add to the charges?' The result was that this 5 to 4 verdict of guilty of conspiracy was then brought in. I am not prepared to say that the learned Judge was not justified in attempting to find out what the view of the jury was on certain minor charges. But the opinion of the jury must be interpreted in view of the words in which it was given. The learned Deputy Legal Remembrancer asked us to infer that the jury very probably thought that the evidence with regard to the occurrence was true and that certain persons amongst the accused were guilty of a substantive offence under Section 326. Now, I can only say that the inference I draw is exactly the opposite. If the jury had really formed such an opinion, there was nothing to prevent them from saying so, and when, in answer to the learned Judge's question, they merely said 'guilty of conspiracy', the implication is that they were not prepared to convict the appellants of anything else.
3. The result, therefore, is that this conviction must be supported on the supposition that the jury did not accept the evidence, (in other words most of the evidence) brought in the case upon which the prosecution relied to implicate the accused persons in the actual occurrence. The present verdict cannot be supported for two reasons: in the first place, the learned Judge never explained to the jury the implication of a conspiracy to commit an offence under Section 326; in the second place, he did not put the evidence before the jury at all with reference to this charge. He was quite rightly, perhaps, more concerned with the evidence upon the main charges.
4. I do not suppose for one moment that the jury would have brought in this verdict if its implication had been explained to them. It implies that the accused persons did not agree to murder the deceased but that they agreed to commit a particular form of hurt in a particular way. Now, I will assume that the evidence upon which Mr. Bhattacharya has relied is evidence of a conspiracy. It is most certainly not evidence of a conspiracy to commit an offence under Section 326. It could not possibly at its highest be anything more than evidence of a conspiracy to commit an offence under Section 323. The most, therefore, we could do for the prosecution in this appeal would be to alter the conviction to one under that section. But we are not prepared to take that course. The learned Judge should have explained to the jury that the evidence upon which the prosecution relied was circumstantial evidence only. There is no direct evidence of an actual agreement to do anything. There was no approver put into the witness-box. The prosecution merely asked the jury to infer from certain facts that there was an agreement to do something. The learned Judge should then have pointed out to the jury that a conviction can only be based upon circumstantial evidence if the circumstances proved are inconsistent with the innocence of the accused.
5. Had the learned Judge explained this charge to the jury, I do not believe for one moment that they would have convicted on it. The case is as weak a case of conspiracy as I have ever seen. The relevant evidence merely amounts to this: that certain persons heard the appellants in various public places utter threats against the deceased; for example, there was evidence that a hawker heard some of the appellants say that it would be a good thing if the deceased was beaten. Then again another appellant made a similar remark but of a slightly more specific kind. All that this amounts to is that the persons who made these threats were desirous of something unpleasant happening to the deceased. It is certainly most useful evidence as evidence of previous conduct on the actual murder charge itself. But no sensible person would be prepared to infer from this that the persons who uttered these threats had agreed together to beat the deceased. It is interesting to note that this very evidence was made the basis of an order under Section 107, Criminal P.C. Of course, if it is evidence of conspiracy now, it was evidence of conspiracy then. But at that time a sensible view was taken of it, and it was regarded in its true perspective. Then, apart from that, there is only evidence of ill-feeling between the parties. That, of course, cannot be the foundation of a charge of conspiracy.
6. From what I have said it is clear that there was never any evidence to support the particular conspiracy of which the appellants have been found guilty. We do not believe for one moment that a properly instructed jury would ever convict anybody of conspiracy to do anything on the prosecution case. The appellants have had a long and protracted trial and the jury were not satisfied that the main charges relating to the actual assault were made out against them and we are certainly not prepared to order a new trial. We shall accordingly allow these appeals, set aside the convictions and sentences passed upon the appellants and direct that they be set at liberty immediately.
7. I agree.