1. This is an appeal by two persons Gahar Sheikh and Jabed Ali who have been convicted and sentenced by the learned Sessions Judge of the Assam Valley Districts.
2. There was one charge only against the two appellants Gahar Sheikh and Jabed Ali alias Saharer Bap that on 28-9-1944 at Bhatiakhali under police station Rupalihat they committed murder by killing one Hussain Prodhani having caused injuries on his person in furtherance of the common intention of both of them and thereby they committed an offence under Section 302/34, Penal Code. The prosecution case was: there was a quarrel between the deceased Hussain Prodhani and his co-villagers on the one hand who had set up a fishing bund in a water channel in Bhatiakhali and the accused persons Jabed Ali, Gahar Sheikh and others of their side who had been erecting another fishing bund above that erected by the complainants on the other hand. One day Hussain Prodhani broke the bund erected by the accused persons and carried it away which resulted in a complaint being lodged by Jabed Ali and Gahar Sheikh to Abdul Gaffur Munshi. On 28-9-194.4 Hussain Prodhani along with his brother Nawab Ali and some others was returning in a cart from the Ambagan market at about 9 or 10 at night. When the cart approached the bund upstream the party saw the appellant Jabed Ali. Jabed Ali enquired whether Hussain Prodhani was in the cart and was told that he was. He then asked that Hussain Prodhani should settle the dispute between them over the fishing bund. Hussain Prodhani said that he would do so on the next day. Jabed Ali then invited Hussain Prodhani to accompany them upstream for a smoke. Hussain Prodhani agreed thereto and left the cart. Nawab Ali went on with the cart to the village and waited for his brother, but his brother never came back. When Hussain Prodhani acceded to Jabed Ali's invitation he went with him a little distance and the party sat down and began to smoke. The topic of the proposed settlement of the dispute was raised and while the talk was in progress the appellant Gahar suddenly got up, went behind Hussain Prodhani and gave him a heavy cut on the back of his head with a dao. Jabed Ali alias Saharer Bap also gave him a cut and a third person who is not before the Court inflicted a further injury. The eye-witnesses who were present were terrorised by Gahar Sheikh who threatened that they would meet with the same fate if they disclosed what had happened. When Hussain Prodhani never returned home his brother Nawab Ali waited for some time and then went back to see what had happened. He found some traces of blood on the spot where the party sat down to smoke and then suspecting foul play went to the police station and lodged an information.
3. As a result of the police investigation the two appellants Gahar Sheikh and Jabed Ali were sent up on a charge under Section 302/34, Penal Code. The jury returned a unanimous verdict finding Gahar Sheikh guilty under Section 802, and Jabed Ali guilty under Section 304, part II, Penal Code.
4. Mr. Sudhansu Mukherjee who has appeared on behalf of the two appellants has raised four points before us. He first of all claims that the learned Judge in his charge to the jury did not give any adequate explanation of the law with result that the confusion in the minds of the jurors was reflected in the verdict which they gave. The charge against the two appellants being one under Section 302/34, Penal Code, it was obviously incumbent on the learned Sessions Judge to give the jury an adequate explanation of Section 34, Penal Code. What the Judge actually did tell the jury was very little.
You have also to find that Jabed Ali had intended to do harm to Hussain Prodhani when he called him away. If you believe the evidence on the circumstances to be true it will only prove that Hussain Prodhani went away in Jabed Ali's and others company and that shortly afterwards it was in Jabed Ali's presence that two persons cut Hussain Prodhani. The question is whether these facts are sufficient to hold that Jabed Ali intended from the very beginning to cause bodily harm to Hussain Prodhani. If he had such intention already in his mind and if the circumstances stated above are satisfactorily proved Jabed Ali would have constructive liability for Hussain Prodhani's death under Section 34, Penal Code. Otherwise he would not be responsible for what happened to Hussain Prodhani although the circumstances alleged might be true.
We cannot hold that this was an adequate or a sufficient explanation of the law as regards Section 34, Penal Code, and in particular although the term constructive liability was used in the explanation the Judge never explained to the jury just what was meant by constructive liability. It is quite clear that this explanation did not enlighten the jury at all but served to confuse them and that is the reason why they returned so incomprehensible a verdict.
5. Mr. Mukherjee next complains that the learned Judge has not given the jury an adequate explanation of what is meant by circumstantial evidence. The direction which is actually given is as follows:
The rule is that only when circumstances point to the single conclusion that the accused person has committed the crime can you take it to be sufficient to prove his guilt. As long as an explanation of the circumstances consistent with the accused persons' innocence is available they should be considered to be insufficient evidence. If more than one explanation of the circumstances are possible, the one which favours the accused person should be followed.
That direction is all right as far as it goes. But it does not go far enough, and we would draw the attention of the learned Judge to a ruling of this Court reported in the case in Jahura Bibi v. Emperor : AIR1931Cal11 in which it was laid down by this Court that in order to justify an inference of guilt the circumstances from which such an inference is said to be drawn must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
6. This point of the failure of the learned Judge to give a proper direction on the point of circumstantial evidence id closely bound up with another point in which he has not given any direction at all. Throughout his charge he has taken it that the case against Jabed Ali depends entirely on circumstantial evidence. That is not the case. One of the eye-witnesses is Asmat Ali Sheikh who was prosecution witness No. 5. In his examination before the Court of Sessions he stated 'I know the two accused persons Gahar and Saharer Bap.' Jabed Ali has the alias of Saharer Bap and under the style of Jabed Ali alias Saharer Bap he was actually charged in this case. The witness went on to say:
I do not recollect that a third man Saharer Bap also hit Hussain with a dao. I do not remember if I told the Magistrate that a third man Saharer Bap also struck Husaain with a dao.
The statement of this witness before the committing Magistrate was put in by the prosecution under Section 288, Criminal P.C., and in that statement he said 'Suddenly Gahar came from behind and gave him a dao cut. Then Saharer Bap gave a cut to the man. At that moment Tajurbaq gave Hussain another dao cut.' When once the statement in the Committing Court had been put in under Section 288, Criminal P.C., it became substantive evidence and should have been put to the jury as substantive evidence. The case against Jabed Ali did not depend merely on circumstantial evidence so long as there was this piece of substantive evidence of Asmat Ali Sheikh against him.
7. The third point raised by Mr. Mukherjee is that there has been a violation of the provisions of Section 162, Criminal P.C. In the introductory portion of the charge the learned Sessions Judge makes use of the following expression:
Next morning Nawab Ali went to the police station where he gave information of what he knew about his brother till then. Evidence of some direct eye-witnesses that the accused Gahar Sheikh and another person are said to be absconding, had caused the death of Hussain Prodhani by cutting him with sharp instrument came to light during investigation.
It is true that this passage appears in the narrative of the sequence of events which led up to the appearance of the accused in the dock to answer the charge against them. At the same time it is ft. statement which should not have been made and which lends itself to the construction that the eye-witnesses who have given evidence in Court against the appellants made the same statements to the police during the course of investigation.
8. With regard to Mr. Mukherjee's last point that the learned Sessions Judge did not place before the jury the medical evidence with regard to the half digested food found in the stomach of the deceased we do not propose to enter, for it is obvious that on the three points raised the convictions and the sentences passed on the two appellants cannot be maintained and they must be retried.
9. The appeal is accordingly allowed and the convictions and the sentences of the two appellants are set aside. The case is remanded to the learned Sessions Judge to be retried according to law.