1. This case is probably unique in the annals'of crime. On 4th December 1933, Amarendra Chandra Pandey died in Calcutta. It is alleged that he died of plague, the germs of which had been injected into his arm by some person, who has not yet been discovered, on Howrah station on the 26th November. The two appellants Benoyendra Chandra Pande and Taranath Bhattacharjee along with Durga Ratan Dhar and Sivapada Bhattacharjee and others unknown were charged with conspiring to murder Amarendra in pursuance of which conspiracy Amarendra was murdered in the manner alleged. Benoyendra was charged also with abetment of murder and Sivapada was charged also with offences under Sub-section 201 and 202, I. P. C. Benoyendra and Taranath were found guilty by a unanimous verdict of the offences with which they were charged and were convicted and sentenced to death. Durga Ratan Dhar and Sivapada Bhattacharjee were found not guilty and acquitted. Benoyendra and Taranath have appealed on the ground of misdirection and illegal admission of evidence. We have to consider these two appeals and a reference under Section 374, Criminal P. C. Benoyendra and Amarendra were half-brothers and members of the Pakur Raj family and jointly inherited their father's estate in 1929. At that time Benoyendra was 27 and Amarendra 16 years old. They were also joint reversionary heirs of their aunt Rani Surjabati. Benoyendra became the Karta of the family on his father's death, and pursued a course of life which, rightly or wrongly, offended and outraged the family, including Surjabati and Amarendra. They considered that he was extravagant, and objected to his relations with a dancing girl named Balikabala, and to his failure to provide money adequate for the suitable upkeep and education of Amarendra.
2. This friction between Benoyendra and the rest of the family gradually increased, especially with Amarendra, who was advised by Surjabati and his relatives Rabindra Nath Pandey and Baidya Nath Pandey. Its existence has been denied by Benoyendra, but it is fully confirmed by documentary evidence of undoubted authenticity. In 1931 Amarendra attained his majority, and in 1932 he began to take definite steps to assert his rights in the joint estate, and in open opposition to Benoyendra. On the 12th May he executed a several power of attorney in favour of persons who could not be controlled by Benoyendra, though he was subsequently induced by Benoyendra's threats and promises to cancel it on the 6th July. These facts and the growing friction between the brothers are confirmed in a series of letters which passed between them, in which also for the first time the question of partition was openly mooted. During the Puja vacation of 1932, Amarendra was staying with Surjabati at Deoghar. One day Benoyendra came there accompanied by a compounder. He and Amarendra went for a walk together, after which. Benoyendra and the compounder departed. A few days after Amarendra began to be ill and his illness was diagnosed by Dr. Sourendra Nath Mukherjee as being due to tetanus infection, which he treated with injections of anti-tetanus serum. A telegram was sent to Benoyendra at Pakur to bring the family physician. He brought instead the appellant, Taranath, a doctor from Calcutta, and wanted Dr. Sourendra to keep Dr. Taranath as his assistant. Dr. Sourendra refused because he got the impression that Dr. Taranath was trying to induce him to abandon the serum treatment in favour of injections of morphia.
3. Subsequently, Benoyendra appeared again, this time with Dr. Dhar, who persuaded Dr. Sourendra reluctantly to give a further injection of serum he had brought from Calcutta, and later still Benoyendra came again with both Dr. Dhar and Dr. Sivapada who prescribed medicines for the patient. These however were not given to him because his relatives were by this time suspicious about both Benoyendra and the doctors who were brought by him. Subsequently, Amarendra developed an abscess at the place where Dr. Dhar's injection had been given, and a sinus which was eventually opened by Dr. L.M. Banerjee in Calcutta. The Crown regarded all these happenings at Deoghar as overt acts of the conspiracy to murder Amarendra. The learned Sessions Judge quite properly excluded evidence of statements alleged to have been made by Amarendra about what happened when he and Benoyendra went for a walk together. Bearing in mind that morphia was admitted to be a correct treatment for tetanus if used as ancillary to serum and for the purpose only of reducing the accompanying convulsions and that there was evidence of the existence of a bleb upon Amarendra's foot which he had pricked with a pin, and that both Dr. Dhar and Dr. Sivapada have been acquitted, I consider that it is safer to disregard the Deoghar incidents altogether in considering the question of the guilt or innocence of the appellants. This illness of Amarendra left him with a permanently damaged heart, and he did not otherwise recover his health until April 1933.
4. In November 1932 Benoyendra began to take steps to obtain the withdrawal from the Allahabad and other Banks of certain cash deposits belonging to the joint estate and amounting to Rs. 13,000. This he achieved by obtaining in June 1933 in the joint names of himself and Amarendra a succession certificate empowering Benoyendra and Amarendra jointly and severally to collect the debts. Subsequently Amarendra learnt about this withdrawal and began to take more active steps to protect his interests, and consulted pleaders with the object of calling Benoyendra to account, and bringing about a partition of the joint estate either amicably or by means of a suit. In October 1933, a sum of Rs. 17,000 was paid into Pakur Court in respect of a compromise decree in favour of the joint estate, and Benoyendra made strenuous efforts to withdraw it. This came to the knowledge of Amarendra who, upon the advice and with the assistance of Rabindra, filed a petition of objection on 17th November, with the result that an order for withdrawal was refused, and Benoyendra failed to get this money until sometime after Amarendra's death. Thereupon Benoyendra returned to Calcutta and attempted to persuade Surjabati to send for Amarendra. Upon her refusal he sent a bogus telegram to Amarendra in the name of Surjabati on 18th November, with the result that Amarendra came to Calcutta on the 19th. The strained relations between the brothers had now reached breaking point, and all the family and especially Amarendra were thoroughly suspicious of Benoyendra and feared that he would stop at nothing to injure Amarendra. The brothers met and discussed at length the question of partition which Amarendra in opposition to Benoyendra, wished to be settled at Pakur.
5. While in Calcutta Amarendra went to the Purna Theatre with his relative Jyotirmayee and her party. Benoyendra was seen hovering about the theatre and its precincts in the company of another man described as short, dark-complexioned and wearing khaddar. Surjabati and Amarendra decided to leave Calcutta on 26th November and Benoyendra learnt about this the night before. On that night he was seen at Howrah Station in the company of a short, dark-complexioned man in khaddar. The next day he called at Surjabati's house, ascertained the exact time of her departure, and announced his intention of coming to see the party off. Surjabati went to the station accompanied by Amarendra, his sister Banabalaand his deceased half-sister's daughter Anima, and they found Benoyendra waiting for them at the station entrance. The party passed through the booking-staff on their way to the platform. Amarendra headed the procession and Benoyendra brought up the rear. On the way Amarendra was jostled by someone coming from the opposite direction whom he afterwards described as a black man in khaddar who was not a gentleman.
6. Immediately after, Amarendra felt a prick in his right arm and exclaimed 'someone has pricked me.' Benoyendra made light of the matter saying that it was nothing, but Amarendra rolled up his sleeve and showed the mark of the prick to his relatives including Benoyendra and Kamala Prasad Pande, and his friend Asoke Prokash Mitra. Kamala Prosad especially was suspicious and feared that the incident was due to some foul play. All the members of the family had been surprised at Benoyendra's unexpected courtesy in coming to see them off, as such behaviour was unusual for him. Kamala begged Amarendra not to go by the train, but to stay in Calcutta and have his blood examined, but Benoyendra was annoyed and rebuked him and said that they were making a mountain out of a mole-hill and urged Amarendra to go. In the train the anxiety of the party grew, and after arriving at Pakur and after receiving an urgent letter from Kamala and upon the advice of Rabindranath, Amarendra decided to return to Calcutta with Rabindra, where they arrived on the 29th. There he was examined by Dr. Nalini Ranjan Sen Gupta who found the mark of a prick on his arm like the mark of hypodermic needle. On the 30th Dr. Nalini advised an immediate blood culture and this was made by Dr. Santosh Kumar Gupta. On 4th December Amarendra died. After a thorough and exhaustive testing of the blood culture on white rats and by means of other tests it was definitely established that Amarendra's blood was infected with germs of bubonic plague and this was reported to the public health authorities.
7. At the trial a mass of evidence was given by medical experts, who were cross-examined very thoroughly and at great length with the object of establishing the probability or possibility that the diagnosis that Amarendra died of plague was wrong, or that the blood culture had been confused with the culture of some other person's blood, or had been either accidentally or deliberately contaminated, or that Amarendra had contracted plague either from his half-sister Kananbala who is alleged to have died of mumps on 10th September 1933, or otherwise naturally from a flea-bite or some other source.
8. I do not propose to discuss this evidence again, but I have considered all of it very carefully and I am satisfied that the Crown succeeded in proving beyond the possibility of reasonable doubt that Amarendra died of plague, the germs of which were injected into his arm on Howrah Station as alleged, by some person at present unknown. Immediately after Amarendra's death some of his relatives began to discuss with Kalidas Gupta, a pleader, well known to the family and living at Pakur, the question of instituting a police enquiry. These discussions went on throughout December and in January, and it was ascertained that Benoyendra had been a boon companion of Taranath to whom he had been introduced by Balikabala, and that all three had been in close friendship and association for more than two years, and that Taranath was a doctor and a trained bacteriologist. Eventually a petition was presented to the Deputy Commissioner of Police at Calcutta by Kamala Prosad Pandey on 22nd January 1934 and Sub-Inspector Sarat Chandra Mitra began to make a cofidential inquiry.
9. Upon information given by Kalidas, Benoyendra was arrested on 16th February while on his way by train to Bombay. The case was formally instituted on the 17th and Taranath was arrested on the 18th. Kalidas proceeded to Bombay on business and there got in touch with a guide named Ratan Salaria who was able to give much valuable information about visits paid by Benoyendra to Bombay both alone and in the company of Taranath. The investigation proceeded at Bombay and Calcutta and the following surprising facts were elucidated. On 12th May 1932, the day upon which Amarendra executed the several power of attorney already mentioned, the stamp for which had been purchased the previous day, Taranath sent an express prepaid telegram to the authorities of the Haffkine Institute at Bombay asking them to send virulent plague culture for laboratory work. At this time Benoyendra was staying at a hotel in Calcutta, and on that day Balikabala accompanied by an officer of the Pakur estate arrived at the hotel. Although Taranath went to the lengtth of adding after his name the letters D. T. M. (Diploma of Tropical Medicine) to which he was not entitled, the authorities of the Haffkine Institute refused to supply the culture, unless Taranath first obtained the permission of the Surgeon-General of Bengal.
10. Later in May, Taranath approached Dr. Ukil of Calcutta and on the faith of Taranath's statement that he had discovered a cure for plague and wished to test it with plague culture, he induced Dr. Ukil to allow him to work in his laboratory under his supervision. Plague culture was obtained from Dr. Naidu of the Haffkine Institute, but Taranath was not allowed to handle it. Attempts were made to subculture the strain supplied, but there was no growth and the strain was destroyed. Taranath tried to induce Dr. Ukil to indent for culture a second time, but he refused. Eventually in 1933, Taranath obtained from Dr. Ukil a letter of introduction addressed to the officer-in-charge of the Haffkine Institute with the request that Dr. Taranath as a bacteriologist might be granted facilities of making experiments in connection with the curative value of a drug which he had discovered and which he considered to be effective in cases of plague.
11. On 30th April 1933, Benoyendra went to Bombay and entered his address in the Orient Hotel registered as of Tagore Castle Lane Calcutta, which was not his address, but Taranath's. He engaged Ratan Salaria as his guide, and told him that he had come to Bombay with the object of obtaining facilities for testing a curative drug for plague on behalf of a brother doctor. He asked for a Times of India Directory in order to ascertain the names of the doctors attached to the Haffkine Institute. The next day he saw Dr. Naidu and gave him Taranath's letter of introduction and said that he was his friend and had been sent in advance to find out whether Dr. Naidu would grant the desired facilities. Dr. Naidu told him that his friend must first write to the Director of the Haffkine Institute and obtain his permission, otherwise he could not help him. The same evening Benoyendra left for Calcutta.
12. On 1st July, Benoyendra, went again to Bombay and stopped at the Sea View Hotel. Again he gave the Tagore Castle Lane address and engaged the same guide. On arrival he made strenuous efforts, including offers of money, to obtain plague culture from Dr. Nagrajan and Dr. Sathe--two veterinary surgeons attached to the Haffkine Institute, but failed. He however obtained from Dr. Nagarajan the information that he could get plague culture at the Arthur Road Infectious Diseases Hospital. Thereupon he saw Dr. Patel, the Superintendent of that Hospital, and asked him to allow his doctor friend to work in his laboratory on his alleged cure. Eventually Dr. Patel was persuaded to accede to this request, and he instructed his assistant, Dr. Mehta that a Bengali doctor was coming to do some work on plague bacilli and to give him facilities. At Benoyendra's request Dr. Mehta obtained Dr. Patel's permission to indent for one tube of live plague culture from the Haffkine Institute pending the arrival of Dr. Taranath. Taranath arrived on 7th July and stayed at the same hotel with Benoyendra, who eventually paid the bill. Benoyendra and Taranath together purchased rats in the market.
13. Dr. Patel introduced Taranath to Dr. Mehta who prepared some subcultures, and Taranath tested the cultures upon the rats with the result that they died of plague. At times Taranath was assisted by Dr. Mehta, but he was not always present during the experiments. Taranath was allowed to work freely in the laboratory and had the use of all the necessary appliances. He also brought with him a small bag containing instruments. On the evening of 12th July, when an experiment on one of the rats was still incomplete, Taranath told Dr. Mehta that he had urgent work in Calcutta and must leave immediately. He asked him to convey his thanks to Dr. Patel and said that he would return later on, but he never returned nor did he correspond with either Dr. Patel or Dr. Mehta. Benoyendra and Taranath left Bombay together that night for Calcutta. While in Bombay Benoyendra made strenuous endeavours to get Amarendra's life insured for Rs. 51,000 with a condition that the policy should not be contested after Amarendra's death. This unusual condition was not accepted and the insurance was not effected. Long statements by Benoyendra and Taranath were read at the trial and amounted substantially to a denial of guilt and of the truth of the inferences which the Crown sought to draw from the facts given in evidence. Taranath's explanation of the Bombay incidents was that he thought that he had discovered a cure for plague and wanted to test its efficacy. He asked Benoyendra to take the letter of introduction to Bombay and make the necessary enquiries because Benoyendra happened to be going on business of his own. Benoyendra's explanation was that he had to go to Bombay on business connected with the film industry in which he was interested, and that he had made enquiries for Taranath simply as an act of friendship.
14. Dr. Mehta saw no signs of any cure or medicine being applied by Taranath to the rats during the experiments. Apart from statements made by Benoyendra and Taranath, there is not a vestige of evidence to show that Taranath either had or thought he had at any time discovered a cure for plague, or wished to test it, or that Benoyendra had any other purpose in going to Bombay than either to procure plague culture, or to obtain for Taranath facilities which would enable to procure it. The practicability of removing culture from the Arthur Road Hospital, carrying it from Bombay to Calcutta and keeping it alive from July to December, was established beyond doubt by the medical evidence. Upon arrest Taranath told Sub-Inspector Mitra that he had never been to Bombay with Benoyendra, that he had no idea of the culture of plague bacilli, that he had never been to Bombay in his life, and that he had never approached any doctor for any letter of introduction for Bombay. He admitted that he had known Benoyendra for 3 or 4 years. Later, while on bail he went to the police and altered this statement, and admitted that he had been to Bombay, but not with Benoyendra. At the trial he denied that he had known Benoyendra prior to September or October 1932.
15. Benoyendra admitted that he had been to Bombay to arrange for film work, but denied that Taranath had ever been with him to Bombay. Further he said that he had never heard anything about Amarendra having been pricked at Howrah Station. While on bail, upon being asked by Gouri Sen, who is connected with the Medical Supply Concern where Taranath was employed as a bacteriologist, 'Well, and how are you in this murder?' Taranath replied 'What little I have done, those who have done more have not been arrested.' Apart from the denials which I have already mentioned, Benoyendra alleged in his defence that the whole case was false and was due to a conspiracy to get rid of him which was concocted by his relatives with the aid of Kalidas Gupta. Of this alleged conspiracy there is not a vestige of evidence. The learned Advocate for the appellants have complained of the wrongful admission of evidence and misdirection and non-direction by the learned Sessions Judge, and of his failure adequately to examine the appellants under the provisions of Section 342, Criminal P. C. There is some justification for these criticisms.
16. A good deal of evidence both oral and documentary was admitted which was of doubtful relevance and which it would have been wiser to exclude. When considering the question of admissibility, the Court should lean always in favour of the accused, and exclude all evidence tendered by the prosecution which is of doubtful or remote relevance. Some evidence also was admitted which was clearly inadmissible and irrelevant. For example Ex. 20, being a letter from Rabindra to Kalidas, Ex. 67 being a letter from Baidyanath to Amarendra, and the contents of certain anonymous petitions found upon Benoyendra when arrested, being Exs. 73, 76, 77 and 78. The admission of the contents of Ex. 76 was somewhat serious error because it contained a reference to statements made by Amarendra about the cause of his tetanus infection, which evidence had quite properly been excluded by the learned Judge at another stage of the trial.
17. Of oral evidence wrongly admitted, there was the statement by Kamala Prosad on p. 70, Vol. 1 of the paper book, that he had his suspicions about Benoyendra because he had heard from Amarendra something about the cause of his tetanus. Also the statement by,Jatindra Das Gupta on p. 421 that another witness, Tota Singh had told him that 'Bhaya' meant Taranath. Tota Singh in his evidence denied this. Of instances of misdirection and non-direction the learned Judge omitted to remind the jury that statements attributed to individual accused, such as those attributed to Sivapada on pp. 38, 113 and 488, would not be evidence against the other accused in the event of the jury finding that individual not guilty. Also he repeatedly stated the case for the prosecution and the arguments advanced in support of it, without clearly pointing out to the jury those parts of it which were not supported by evidence, or depended merely upon glosses upon evidence. Further on p. 703 he stated to the jury that they had already heard in evidence that Benoyendra was suffering from venereal disease. This undoubtedly was liable to prejudice the accused. There was no such evidence, because Ex. 75 which was Benoyendra's Blood Examination Report, was, quite properly, not tendered in evidence, being irrelevant and inadmissible. Further with regard to the anonymous petitions which I have mentioned already, the learned Judge referred, on pp. 708 and 712, to their contents, and told the jury that evidence given on oath was of much greater value than statements made by unknown persons in anonymous petitions, when there was nothing to show that the statements were made whereas he ought to have told them that this evidence, which had been improperly admitted, was of no value, and directed them to reject it as irrelevant. Similarly, he referred to the contents of other documents which I have held to be inadmissible and irrelevant, such as Ex. 67 on p. 712. Further, on p. 746, he referred to Balikabala as the common keep of Benoyendra and Taranath, of which there was no evidence, and on pp. 748 and 750 he said that Amarendra's body had been cremated speedily, thanks to Benoyendra's bribe to the Registrar at the burning ghat, of which there was no real evidence.
18. With regard to the Judge's alleged failure to examine the accused generally at the end of the case for the prosecution the learned advocates have pointed out that he repeatedly drew the jury's attention to the fact that the accused had failed to give any explanation of facts adduced in evidence against them. In my opinion, this criticism is justified. Bearing in mind that the onus of proof in criminal cases never shifts to the accused, and that they are under no obligation to prove their innocence or adduce evidence in their defence or to make any statement, the learned Judge's remarks amounted to misdirection. Upon this point the law has recently been re-stated clearly and emphatically by Viscount Sankey, L.C. in Woolmington v. The Director of Public Prosecutions (1935) A 0 462. And in any case, if the learned Judge intended to make such remarks, it was undoubtedly his duty first to give the accused an opportunity of explanation by drawing their attention specifically to the evidence upon which the learned Judge relied. On the whole however I have come to the conclusion that none of these errors are more than comparatively minor blemishes on what was otherwise a careful and very able charge, and a masterly exposition of intricate evidence, at the end of a long and difficult trial. Nevertheless, if I thought that these errors had seriously prejudiced the accused, or that their omission would possibly have led to a different result, or that they had caused any failure of justice it would have been necessary to order a new trial. The decision in this case, however does not really turn upon questions about the veracity of witnesses or upon the finding of doubtful facts, but upon the question what inference is to be drawn from well-established facts about the existence of which there is not and cannot be any reasonable doubt. This Court is at least as well, if not better, qualified than the jury to draw the necessary inference.
19. For the purpose of this decision I have eliminated from consideration all evidence which was inadmissible or of doubtful relevance. I have also disregarded the evidence of Gouri Sen about the truth of which there may be some doubt, and of Benoyendra's alleged attempts to interfere with possible witnesses after the death of Amarendra. Taking into consideration only the incidents at Bombay and at Howrah Station, and the medical and documentary evidence, the questions to be decided are, what inferences are to be drawn from these facts, and whether more than one inference 'is reasonably probable. After very careful consideration I have come to the conclusion that the only possibly reasonable inference is, that the two appellants conspired together to murder Amarendra, and that for this purpose they provided some person at present unknown with plague culture which was obtained by them from Bombay as alleged, and that that person, upon their instigation, murdered Amarendra by injecting the germs of plague into his arm at Howrah Station as a direct result of which he died. I am satisfied beyond any reasonable doubt from the evidence given by the medical experts and the health authorities, that the plague culture could not possibly have been obtained elsewhere than at Bombay and in the manner alleged. It is clear from the evidence that Benoyendra and Taranath had the means of obtaining plague culture and that Benoyendra had the motive to use it in the manner alleged. There is evidence that no other likely or possible person could have had either the means or the motive, and there is no evidence that anyone else had either means or motive.
20. The motive for this crime is clear and abundant and requires no elaboration. It is proved by the documentary evidence alone, apart from the statements of witnesses whose evidence may possibly have been coloured by bias or suspicion. The result is that each of these appeals must be dismissed. The murder was committed more than two years ago. The appellants were arrested in February 1934, were committed for trial in May, and were on trial until February 1935. The appeals and the reference were received in the office of this Court on 25th February, but the paper book was not ready until 2nd July, a delay of over four months. In a capital sentence case this delay is unreasonable and requires explanation. The result of this delay and the intervention of the long vacation had been that the appellants have remained under sentence of death for approximately ten months. In consideration of these facts, and all the facts and circumstances of this case, which depends solely upon circumstantial evidence, and in the hope that this course may lead to the discovery and apprehension of the actual perpetrator of this atrocious crime, we do not confirm the sentence of death, but sentence each of the appellants instead to transportation for life.
Nasim Ali, J.
21. I agree. Mr. Basu appearing on behalf of the accused Benoyendra has contended before us that we have no power to affirm the conviction of the accused, if the verdict of the jury on which the conviction is based is found by us to be erroneous owing to misdirections of the Judge. The line of reasoning adopted by Mr. Basu is as follows: By proviso to Section 376, Criminal P. C., sentence of death cannot be confirmed by this Court until the appeal of the accusd has been disposed of. By Section 418 (1), of the Code, where the trial is by jury, appeal lies on a matter of law only. In disposing of appeals in such cases the powers of the appellate Court are limited by Section 423 of the Code (1). If there is no error of law the appeal fails. If there is an error of law the appeal succeeds. Admission of inadmissible evidence, misdirections or non-directions on material points are errors of law. Sub-section 2 of Section 423, authorises the Court to alter or reverse the verdict of a jury if it is erroneous owing to a misdirection of the Judge. As soon as the verdict is found to be erroneous owing to misdirection of the Judge this Court is bound to set aside the verdict as well as the conviction and sentence. After the conviction and the sentence are set aside nothing remains to be confirmed under Section 376 (a) of the Code. Two courses are thereafter open to this Court (a) to acquit the accused or (b) to order a re-trial. This Court can go into facts for either of those two purposes. It cannot go into facts and substitute its own verdict in place of the verdict of the jury which has been already set aside. The word 'erroneous' in Sub-section (2) of Section 423 does not mean wrong in facts but wrong in the process by which it has been arrived at. The expression 'in fact has occasioned a failure of justice' in Section 537 (d) of the Code does not imply failure of justice in reality, i.e. on merits. It implies prejudice or some substantial wrong to the accused. Section 167 of the Evidence Act must be read subject to the general principle laid down (1894) A C 57 Makin's case (1894) A C 57, that the right to be tried by a jury is a cherished right and cannot be taken away by the Court of appeal.
22. In support of this argument reliance was placed by the learned Advocate in the following cases, Waffadar Khan v. Queen-Empress (1894) 21 Cal 955, Ali Fakir v. Queen-Empress (1897) 25 Cal 230, Sadhu Sheikh v. Queen-Empress (1900) 4 C W N 576, Harzir v. Emperor (1910) 14 C W N 493, Emperor v. Ikramuddin 1917 All 173, Ramesh Chandra Das v. Emperor 1919 Cal 514. In Waffadar Khan v. Queen-Empress (1894) 21 Cal 955 there was no appeal on facts. The word 'erroneous' in Section 423 was taken to mean wrong not on facts but wrong in the process by which it was arrived at. The reason given for this interpretation was that the word must be read in connection with the words that follow. In this case the principle in Makin's case (1894) A C 57 was applied and no reference was made to Section 167, Evidence Act. (1894) A C 57 Makin's case (1894) A C 57 proceeded on the principle that right to be tried by jury is a cherished right and if an accused be deprived of that right, substantial wrong is done to the accused and there is miscarriage of justice. The verdict of the jury was set aside and the accused was acquitted. In Ali Fakir v. Queen-Empress (1897) 25 Cal 230 the verdict of the jury was found to be vitiated by misdirections. This Court set aside the verdict and ordered a re-trial in view of the decision in Waffadar's case WAffadar Khan v. Queen-Empress (1894) 21 cal 955. In this case also there was no appeal on facts. In Sadhu Sheikh v. Queen-Empress (1900) 4 C W N 576 the principle in Makin's case (1894) A C 57 was applied. In this case there was no appeal on facts. The misdirections of the Judge were found to have misled the jury upon a material point. The Court of appeal was not in a position to say what effect the misdirection might or might not have on the minds of the jurymen. Under these circumstances it was held that the prisoners were prejudiced and there had been failure of justice. The conviction was set aside and a retrial was ordered. In Harzir v. Emperor (1910) 14 C W N 493 the principle in Sadhu Sheikh's case Sadhu Sheikh v. Queen-Empress (1900) 4 C W N 576 was followed. There was no appeal on facts. Section 167, Evidence Act, did not apply to it as no inadmissible evidence was placed before the jury. In this case re-trial was ordered in the case of some of the accused. In Emperor v. Ikramuddin 1917 All 173 the appeal was against an order of acquittal. The Allahabad High Court followed the principle laid down in Waffadar Khan v. Queen-Empress (1894) 21 Cal 955, set aside the conviction and ordered a re-trial.
23. In Ramesh Chandra Das v. Emperor 1919 Cal 514 there was no appeal on facts. The verdict of the jury was based on some inadmissible evidence. Section 167, Evidence Act, was not applied as the trial was by jury and the appeal lay on a matter of law only. In this case however it has been observed that the true rule is that the Court of appeal should not confirm the conviction of the appellant or regard the legal evidence as sufficient to justify the decision unless it is satisfied that the verdict of the jury would have been the same if no evidence had been wrongly admitted and that the same principle should be applied to the wrongful admission of evidence as to misdirections of law. In this case the Court was not in a position to predict that the verdict of the jury would not have been the same if no evidence had been wrongly admitted. The appellant was discharged in this case, as re-trial was held to be a matter of discretion. The learned Advocate-general appearing for the Crown invited our attention in this connection to the following cases: Queen-Empress v. Ram Chandra (1895) 19 Bom 749, Taju Paramanik v. Queen-Empress (1898) 25 Cal 711, Emperor v. E.W. Smither. (1903) 26 Mad 1, Superintendent and Remembrancer of Legal Affairs v. Syam Sundar 1922 Cal 106, Harendra Nath v. Emperor 1925 Cal 161, Government of Bengal v. Santiram Mondal 1330 Cal 370, Saroj Kumar v. Emperor 1932 Cal 474 and Ram Chandra v. Emperor 1933 Bom 153. In Ram Chandra v. Emperor 1933 Bom 153 the Bombay High Court dissented from the decision in Waffadar Khan v. Queen-Empress (1894) 21 Cal 955. In this case the verdict of the jury was vitiated by some inadmissible evidence. The learned Judges however applied the provisions of Section 167, Evidence Act, and affirmed the conviction and sentences though the appeal lay as a matter of law only. The reasons given were: (1) no authority was cited in Waffadar Khan v. Queen-Empress (1894) 21 Cal 955 in support of the interpretation of the word 'erroneous' in Section 423 of the Code. (2) In view of the provision of Section 167, Evidence Act, and Sub-section 537 and 423, Clause (d), Criminal P. C., the principle in Makin's case (1894) A C 57 was not applicable in India. The learned Judges applied the test laid down in In Re: Elahi Buksh (1866) 5 W R, 80, viz., whether if the case had been tried by a Judge and assessors the Court would set aside the verdict.
24. It was pointed out that a re-trial should be ordered where the evidence is of such a character as to render it difficult to pronounce upon its value without hearing witnesses, but where the evidence is one sided and practically undisputed and the result depends upon the inference from that evidence the matter should be determined by the Court of appeal and no re-trial should be ordered. In Taju Paramanik v. Queen-Empress (1898) 25 Cal 711, this Court dissented from the decision in Waffadar Khan v. Queen-Empress (1894) 21 Cal 955. The reasons given are (1) that the principle enunciated in Makin's case (1894) A C 57 is not applicable in this country as the policy of this country is different, (2) that nowhere the law lays down that when the verdict is set aside the Court must necessarily direct a new trial. In this case the appeal lay on a matter of law only. In Emperor v. E.W. Smither. (1903) 26 Mad 1 the test in In Re: Elahi Buksh (1866) 5 W R, 80 was applied. It is pointed out that trial by jury is a comparatively recent innovation in India and even now all the offences are not so tried. The principle in Makin's case (1894) A C 57 should not be applied to a country where the history and essential characteristics of the law of trial by jury are very different. It has been observed in this case that Section 418 simply means that if there is an error of law the appeal will lie, and if there is no such error no appeal will lie and that the section does not prohibit the Court in a case where an appeal lies on a question of law from deciding questions of fact which other sections of the Code require the Court to decide in order to do justice to the case. In this case it is also pointed out that the words 'in fact' in Section 537, indicate that in order to determine whether there has been a failure of justice in fact we must look into the facts to see what they are. Waffadar Khan v. Queen-Empress (1894) 21 Cal 955 and Ali Fakir v. Queen-Empress (1897) 25 Cal 230 were dissented from by the learned Judges.
25. In Superintendent and Remembrancer of Legal Affairs v. Syam Sundar 1922 Cal 106 there was an appeal on a matter of law only. Though there had been misdirections, this Court refused to set aside the verdict and dismissed the appeal as it came to the conclusion after examining the evidence, that the misdirection in fact did not occasion a failure of justice. In Harendra Nath v. Emperor 1925 Cal 161 this Court did not interfere with the verdict of the jury though it was based on some inadmissible evidence in view of the provision of Section 167, Evidence Act, as apart from the inadmissible evidence there was sufficient evidence to justify the decision. In Government of Bengal v. Santiram Mondal 1330 Cal 370 this Court has laid down that even if the verdict of the jury is erroneous owing to misdirection in a proper case this Court should deal with the whole case under the power and duty conferred upon it by law. This was an appeal against an order of acquittal. In Saroj Kumar v. Emperor 1932 Cal 474 it has been laid down by this Court that before we can interfere with the verdict of the jury we must be reasonably satisfied that not only the Judge misdirected the jury but that his misdirection has caused them to come to a conclusion which is in fact wrong. In deciding Harzir v. Emperor (1910) 14 C W N 493 the Bombay High Court followed the principle laid down in the case reported in Queen-Empress v. Ram Chandra (1895) 19 Bom 749. In this case though iho appeal lay on a matter of law only Patkar J., made the following observations:
In a case of trial by jury the appellate Court has power in the event of any misdirection or admission of inadmissible evidence either to convict or to acquit the accused according as the evidence is or is not sufficient for conviction where the facts have to be determined and the evidence is of such a character that it renders it difficult to pronounce any opinion as to its character without hearing witnesses, re-trial may be ordered.
26. It may be noticed here that in the Code of 1872 (Section 283) the words used were
has occasioned a failure of justice either by affecting the due conduct of the prosecution or by prejudicing the prisoner in his defence.
27. In the Code of 1882 the latter words were omitted and the section simply read 'has occasioned a failure of justice.' after the decision in Waffadar Khan v. Queen-Empress (1894) 21 Cal 955 and Ali Fakir v. Queen-Empress (1897) 25 Cal 230 the words 'in fact' were inserted and the explanation and an illustration were added in 1898. In Emperor v. E.W. Smither., (1903) 26 Mad 1 Benson, J., observed:
The words 'in fact' were introduced into the code in 1898 apparently in order to emphasise the duty of the Court to go into merits before interfering in consequence of a misdirection or other error.
28. It is not disputed by Mr. Bose that in an appeal against an order of acquittal this Court can go into facts and convict the accused though the verdict may be erroneous owing to a misdirection of the Judge. Mr. Bose also concedes that in appeals against the conviction this Court after setting aside the verdict on the ground of misdirection has power to go into facts and acquit the accused. The learned Advocate-General contended that this Court has power under Section 423 to dismiss the appeal (even if verdict is erroneous in the process by which it has been arrived at) if this Court find that the conviction is right on the merits from the reported cases it appears that there is a divergence of judicial opinion on the question whether in cases where the appeal lies on a matter of law only the appellate Court has power in the event of any misdirection by the Judge or admission of inadmissible evidence to deal with the whole case on merits and to dispose of the case finally. The later decisions of this Court show that this Court has such power. In cases however where the appellants have been sentenced to death they have in this Court an appeal on matter of fact as well as of law. Section 374, read with 418 (2), supports this view. In disposing of a reference under Section 374 and the appeals by the persons sentenced to death we are therefore obliged to come to our own independent conclusions as to the guilt or innocence of the accused independently of the verdict of the jury or of the opinion of the Judge. In these cases the questions of misdirection are of less importance. But though we are not bound by the verdict of the jury we must attach greatest possible weight to the verdict of the jury if it answer a reasonable test. [See Queen-Empress v. Chatradhar (1898) 2 C W N 49, Gulkhan v. Emperor 1928 Cal 430, Emperor v. Pachoo Shaikh 1931 Cal 178, and Emperor v. Ashraf Ali 1933 Cal 426.] Much reliance was placed by Mr. Bose on a decision of this Court of the year 1927 in Emperor v. Rajab Ali Fakir 1927 Cal 631 103 C C 790, in which the following observations were made:
The learned Deputy Legal Remembrancer has argued that the entire case is open to us under Section 374, Criminal P. C. No doubt that is so; but that assumes that whatever has happened before the case comes to this Court has been done in strict accordance with the provision of the law, viz., that there had been a proper trial before a Judge and jury. But we are unable to say that there has been a proper trial in the case, the only course that is open to us is to set aside the conviction and sentence and to direct a re-trial.
29. This was a very peculiar case. In this case the Judge told the jury that there was no case considering the matter from any point of view other than the point of view presented by the prosecution and that the only course open to them was to bring in a verdict of guilty. Under these circumstances this Court held that there has been no proper trial. It may be noticed that in this case also it has been observed that in a reference under Section 374 the entire case is open to us. In disposing of a reference under Section 374 of the Code and the appeals by the accused, we are therefore bound to satisfy ourselves by going through the evidence whether the accused have been rightly convicted, but in doing so we must attach considerable weight to the verdict of the jury. If after examining the evidence which is admissible in law we find even without any opportunity of hearing witnesses and seeing their demeanour, that certain facts emerge from the evidence as proved beyond reasonable doubt and the decision in the case depends upon inference to be drawn from these proved facts, we are not bound to order a retrial. When however the evidence cannot be properly weighed by the Court without hearing witnesses and seeing their demeanour in the witness box and we are not in a position to say whether the facts from which inferences are to be drawn are true or false, retrial should be ordered. I am therefore unable to accept the broad proposition that in dealing with reference under Section 374 and the appeal by the accused only two courses are open to us, viz. either to acquit the accused or to order a re-trial.
30. Now the charge against the accused is that between May 1932 and December 1933 at Bhawanipore, Calcutta, Howrah and Deoghar, Pakur, Bombay and other places they along with others were parties to a conspiracy to commit murder of Amarendra and in pursuance of the said conspiracy Amarendra was in fact murdered by the introduction, on 26th November 1933 of virulent plague bacilli in his body which resulted in his death on 4th ,December 1933. It is not necessary that there should be express proof of conspiracy. It is not necessary to prove that two or more persons came together, actually agreed in terms to have the common design and to pursue it by common means and so carry it into execution. There may be no witnesses to say that in their presence the conspirators agreed to carry out an unlawful object. From the acts and conduct agreement can be inferred. If it is proved that they pursued, by the acts, the same object often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view to the attainment of the object which they were pursuing, you are at liberty to draw the inference that they conspired together to effect that object: R. v. Murphy (1873) 8 C & P 297. The question whether certain acts were done in pursuance of a conspiracy or were done separately without any pre-arranged plan depends upon the evidence in each case. The evidence must show a common plan so as to exclude a reasonable possibility of the acts of the conspirators having been done separately and connected only by coincidence. (His Lordship then considered the evidence and proceeded). There are therefore no circumstances to show that his attempts to get plague culture in 1932 and his activities at the Arthur Road hospital in 1933 were in connection with his experiments on any plague cure. It is true that:
The proof of a case against the prisoner must depend for its support not upon the absence or part of any explanation on the part of the prisoner himself but from the positive alternative evidence of his guilt that is given by the Crown. It is not however an unreasonable thing and it daily occurs in investigation both civil and criminal that if there is a certain appearance made against a party if he is involved by the evidence in a state of considerable suspicion he is called upon for his own sake and his own safety to state and to bring forward the circumstances whatever they may be which might reconcile such suspicious circumstances with perfect innocence, Regina v. Frost (1839) 4 St Tr N S 85 443.
31. From the facts and circumstances of the case the only reasonable inference is Taranath went to Bombay for the purpose of securing plague culture. Now Benoy in his statement says that he had been to Bombay in connection with his film business. It has been already stated that he arrived at Bombay on 30th April 1933 and left Bombay on the next day when he was told by Dr. Naidu to ask Taranath to write to the Director of Haffkine Institute for permission to make his experiments in the laboratory of the Institute. On his arrival at Bombay on 30th April 1933 he took Ratan Salaria as his guide. Ratan Salaria in his examination says that Benoy told him that his business in Bombay was to obtain facilities for Taranath's plague cure. He further says that Benoy did not say a word to him about any film Company or asked him to guide him to any film Company. It was never suggested to Ratan Salaria in the course of his cross-examination that his first visit to Bombay was in connection with any film business or that he ever visited any film Company. On his second visit to Bombay he also told Ratan Salaria that the object of his visit was the same as on the last occasion. This time he tried to get plague culture surreptitiously from the Haffkine Institute through Dr. Nagrajan and Dr. Sathe. He no doubt denies this, but no reason was shown why these two witnesses from Bombay would give false evidence against Benoy. There is nothing to show that Taranath asked Benoy to see these two doctors.
32. On the other hand Taranath says that he asked him to try Arthur Road Hospital for facilities for his experiments there. There was no suggestion to Ratan Salaria that Benoy's second visit was in connection with some film business. Much reliance was placed by the learned advocate for Benoyendra on Ex. 33. This is a letter which was written by Benoy to Amar on 20th July 1933. In this letter Benoy stated that his trip to Bombay was in connection with the production of a film and the costs were paid by a Company to a rupee, and that there were letters, cheques and bills in connection with the matter. No evidence was adduced by Benoy to substantiate these statements in Ex. 33. There is nothing to show that such evidence was not available at the time of the trial. In the course of the trial Benoy did not suggest the name of any company or anything from which the prosecution could get any details of this business. Prosecution therefore was not in a position to bring any evidence to show that his story about film business was false. Benoy was spending money from the joint fund and in order to meet any objections from Amarendra he was giving a false explanation in Ex. 33 about his expenses at Bombay.
33. It may be noticed here that after the death of Amarendra, Benoyendra made attempts to tamper with the evidence. Benoy does not explain why he was going to Bombay with money on 18th February 1934. The reason is obvious. He was going to Bombay because he knew that the best evidence about his complicity in the crime would come from Bombay. There are no materials or circumstances for a reasonable hypothesis that Benoyendra's visit to Bombay was in connection with any film business or any business other than the procurement of plague culture. The report (Ex. 26) of Dr. Santosh Kumar Gupta (P. W. 33), his evidence in Court and the evidence of Dr. Naidu (P. W. 68) prove that Amarendra died of plague. It was argued on behalf of the appellants that the report of Dr. Gupta should not be relied upon as he did not apply the agglutination test. The evidence of Dr. Naidu is that it is extremely difficult, almost impossible to get a homogeneous and even suspension without spontaneous clumping and that specific anti plague serum agglutinates precede tuberculosis reduentum and also some members of the Pasteurella group. There is therefore no substance in this contention. It had been already stated that on 26th November 1933, while Amarendra was proceeding across the Howrah Station Hall after passing through the no-exit gate, he shouted out that he had been pricked by somebody with a pin. On 29th November Dr. Nalini found the mark of a prick on the right deltoid, something like the mark of a hypodermic needle. Dr. Nalini refused to accept the defence suggestion that the mark which he saw was the mark of a flea or insect-bite. The evidence in this case excludes the defence suggestion that Amarendra was bitten by a rat-flea at the Howrah Station. I am satisfied from the evidence in this case that plague bacilli were injected into Amar's system by some man at the Howrah Station and that his death was caused by the injection of the sensis. Now what was the source of this plague culture? The evidence in this case shows:
34. (1) That the Haffkine Institute at Bombay is the only place in India where plague research and researches on cultured Sera and Vaccine are being carried on since 1896 (P. W. 68). Makin's case (1894) A C 57 That the said Institute supplied cultures to Government Institutions and research Institutions, if approved by proper authority (P. W. 68). Waffadar Khan v. Queen-Empress (1894) 21 Cal 955 That the said Institute does not supply plague culture to private bodies or persons (P. W. 68). Ali Fakir v. Queen-Empress (1897) 25 Cal 230 That in 1932 the Haffkine Institute sent some plague culture to Dr. Ukil of Calcutta but the culture and the sub-culture were destroyed in 1932 when the sub-culture failed (Exs. 15, 15/1, Ex. 16 and the evidence of P. W. 41 and P. W. 43); Sadhu Sheikh v. Queen-Empress (1900) 4 C W N 576 that in January or February 1933 four tubes of plague culture were supplied by the Haffkin Institute to the School of Tropical Medicine in Calcutta (P. W. 69); Harzir v. Emperor (1910) 14 C W N 493 that the Arthur Road Hospital at Bombay is the only place in Bombay where plague cases are treated and culture is made in that hospital only for the Haffkin Institute (P. W. 47); Emperor v. Ikramuddin 1917 All 173 that the said hospital does not supply plague cultures to any other person or Institute except the Haffkin (P. W. 47); Ramesh Chandra Das v. Emperor 1919 Cal 514 that at Kanbum Valley researches are going on with regard to several aspects of plague (P. W. 68); and (9) that there are plague hospitals in Poona, Hyderabad and Secunderabad (P. W. 68).
35. Now the evidence does not show that plague cultures are made or are available at Kanbum Valley or the plague hospitals in Poona, Hyderabad and Secunderabad. The evidence of P. W. 69 shows that out of the four sealed tubes of plague culture indented by the Tropical School in Calcutta, up to 2nd October 1934, three continued to be in the same condition as they were when they were received from Bombay. The accused Tara Nath could not get plague culture in Calcutta, in 1932 and 1933 and had to look to Bombay for the same. In July 1933 Benoyondra told Dr. Nagarajan (P. W. 46) that he could not get plague culture in the Calcutta School of Tropical Medicine. The Tropical School in Calcutta does not make plague cultures or stock them. Plague cultures are generally indented for that school from the Haffkin Institute for purposes of experiment. The inference therefore is legitimate that the other tube in the Tropical School was used for experiments in the school before 6th April 1933. Captain Pasricha (P. W. 69) also said that in no other place in Calcutta plague cultures are made or stocked the culture which was the cause of Amar's death was not therefore procured from Calcutta. The attempts of Dr. Tara Nath in 1932 and that of Benoyendra in 1933 to obtain plague culture from Haffkin Institute failed. The evidence in this case does not suggest that it could have been obtained from the said Institute. In July 1933 Benoyendra while at Bombay got the information from Dr. Nagarjan that plague cultures were available in Arthur Road Hospital at Bombay. Tara Nath on his arrival at Bombay got access to plague cultures which were alive. The evidence further shows that Tara Nath had means to remove some plague culture without the knowledge of the hospital authorities and carry the same to Calcutta.
36. There is evidence also to the effect that plague culture if purloined in July 1933 could be kept alive up to 26th November 1933. There is also evidence that from 1926 up to September 1934 only one doctor, i.e., Tara Nath from Bengal had gone from Calcutta and Bengal to Arthur Road Hospital. The only reasonable inference is that the culture which was injected into Amar's body was brought from the Arthur Road Hospital at Bombay. The evidence does not show that the man who injected plague culture into Amar's body had any opportunity of stealing culture from the said hospital. He must have therefore got it from some body else. Benoyendra was on bad terms with Amarendra. The evidence does not show that any one else had any motive for murdering Amarendra. Benoyendra and Tara Nath were close friends and associates. The activities of Benoyendra and Tara Nath at Bombay in July 1933 can be explained only on the reasonable hypothesis that they were acting in close concert to steal plague culture from Arthur Road Hospital. In pursuance of the preparation made by Benoyendra, Tara Nath on his arrival at Bombay obtained facilities for stealing plague bacilli from the said hospital. They could be carried to Calcutta and kept alive till 26th November 1933. The germ which was responsible for Amarendra's death was obtained from Arthur Road Hospital and the evidence shows that excepting Tara Nath no body else had any opportunity for purloining it from that hospital. The only legitimate inference therefore is that the plague culture which was the cause of Amarendra's death was procured from Arthur Road Hospital in pursuance of a conspiracy to murder Amarendra and was supplied to a person at present unknown who injected it into Amar''s system and Amarendra was murdered in fact by the injection of that sepsis at the Howrah Station on 26th November 1933 and that Benoyendra and Tara Nath were parties to that conspiracy.