1. This case comes before us under Section 374, Criminal P.C., with regard to the trial of a man named Sashi Kanta De alias Saahi Barai in which the charges against the accused were under Section 302 and 397 I.P.C. The jury have arrived at a unanimous verdict of guilty, and the learned Judge agreeing therewith passed the sentence of death subject to confirmation by this Court.
2. We have had the charge to the jury placed before us. The case was one in which it is alleged that the accused hadmurdered and robbed one Ram Golam Thakur as he was on his way home at about 8 o'clock one evening. It appears that the fatal blow was on the back of his head. The evidence of the prosecution shows that when he wa3 struck he called out with the result that certain persons came upon the scene and the deceased made a statement to them in the nature of a dying declaration mentioning who it was who had done him the injury. He was then removed to the house of Mahi Kanta Majumdar and he made a further statement to him. In these circumstances it is pretty clear that the foundation for the prosecution case is the dying declaration of the deceased. It has been pointed out to us that in the charge there is no caution given to the jury as regards the weight and the efficacy to be given to a dying declaration of this character. Some such caution should undoubtedly have been laid before them, and their attention should have been drawn to the question of how far the other facts and surrounding circumstances proved in evidence might be said to support the truth or otherwise of that declaration. It would not be fitting for us to lay down any more detailed directions having regard to the order that we propose to make. But so far as the case now before us is concerned the verdict of the jury and the sentence must be set aside and the case must go back for retrial by some other learned Judge.
3. It is particularly regrettable that this course is necessary having regard to the time that had elapsed between the commission of the offence and the conclusion of the trial. Let the record be sent down at once and let the case be disposed of as early as possible.