1. The nine accused in this case were charged with offences under Sections 120 B/395, 399, 402, I.P.C., also under Sections 304/34 and 326/34 and 326/109 in respect of the death of one Idris. In addition, two of the accused namely Shamsul Huda and Benozir Ahmad, were charged under Section 302 with the murder of one Harimohan Roy and another accused Oliulla with abetment of the murder.
2. The jury found all the accused not guilty of the charges relating to the deaths of Idris and Harimohan. Six of the nine accused were found guilty under Sections 120-B, 395, 399 and 402, in the case of Oliulla by a majority of 4 to 3, and in the case of the other five unanimously. Benozir Ahmad was found not guilty and acquitted also of the charges under those sections by a majority of 5 to 2. In the case of Benozir Ahmad the Government has appealed against his acquittal of the charges under Sections 120-B/395, 399 and 402 and the accused who have been convicted have appealed against their conviction.
3. It is argued first of all that the trial has been vitiated owing to the defective constitution of the jury, which consisted of only seven persons. Only fourteen jurors were summoned m the case, of whom six were absent when called, one was exempted and one discharged on objection, leaving therefore six empanelled without objection. Another person who was on the list of special jurors and happened to be present in Court was taken in 'to complete the number of seven.' From the record it would appear that the learned Judge never applied his mind to the question whether nine jurors ware not required under the provisions of Section 274 Criminal P.C. He speaks of seven as being the 'required number.' It does not appear any where that it was not practicable to have a jury of nine persons, or that the Judge ever took that question into consideration. The result is that the trial has been held with a jury illegally constituted, and this has been utilized as a ground of appeal not only by the accused appellants but by the Crown appellant. It is true that the Crown is not appealing in so far as the acquittal was on the charges under Sections 302 and 304, I.P.C., but that can make no difference to the illegality of the trial, and as the accused were tried jointly they are all affected by the illegality. He thinks it is clear that this is not a class of illegality which can be treated as curable under Section 537, Criminal P.C. It is a case where we think that the principle of Dwarika Malo v. Emperor : AIR1930Cal60 must be applied.
4. We accordingly allow the appeals. The verdict of acquittal in Benozir's case is reversed and we direct that he be retried. In the case of the accused appellants we reverse the findings and sentences and direct that they be retried. The retrial in all cases will be limited to the charges under Sections 120-B/395, 399 and 402, I.P.C.
5. The accused Beaozir Ahmad who is now on bail will remain on the same bail until further orders of the Sessions Judge.