1. This is a reference by the Sessions Judge of Sylhet and Cachar under Section 307, Criminal P.C. in a case in which the accused was charged under Sections 115/302, 1. P.C. or alternatively under Sections 117/302, I.P.C. The majority of the jury brought in a verdict of not guilty under Sections 117/302. As regards the charge under Sections 115/302 all of them brought in a verdict of not guilty unanimously. The learned Judge came to the decided conclusion that the verdict regarding the charge under Sections 117/302, 1. P.C, was perverse and was against the weight of the evidence, and that as such for the ends of justice it was necessary that the whole case should be placed before this Court. The facts of the case shortly are that on 9th July 1931 the accused Dwarikanath Goswami led a procession of young men and girls consisting of about 40 carrying black flags and pictures of Dinesh Gupta and Bhagat Singh in front of the procession to the Sylhet Town Hall. At about 6 o'clock in the evening a meeting was held at the Town Hall of about 200 people in which the accused moved a resolution and delivered a speech. The resolution was that
the people of Sylhet both male and female admire the noble example shown and left by Dinesh Gupta in the service of the mother country and request all to follow that example.
2. This was followed by a speech exhorting the people in accordance with the terms of the resolution. Then on 26th July the accused supported a similar resolution, namely, that
Bhagat Singh, Shukdeb, Rajguru, Dinesh Gupta, Harkishen and other hero martyrs of Young India, have set brilliant example of self-sacrifice with a view to overthrowing imperialism and this conference invites the youths of the Surma Valley to be inspired with that ideal of fearless self sacrifice;
and he supported it with a speech in which he exhorted the youth of the Surma Valley to follow the examples of those persons. Charges were framed in respect of the conduct of the accused on both these occasions, namely, the two alternative charges, one under Section 115 read with Section 302, I.P. C, and the other under Section 117 read with Section 302,1. P.C. It is obvious and it is not dispute that the accused was guilty under Section 117 read with Section 302, I.P.C. But it is argued that the learned Judge was right in holding that Section 115, I.P.C., did not apply in this case. On the other hand on behalf of the Crown it is urged that the whole case is open to us and that Section 117 does in fact apply. Section 115, I.P.C., is as follows:
Whoever abets the commission of an offence punishable with death or transportation for life, shall, if that offence be not committed in consequence of that abetment, and no express provision is made by this Code for the punishment of abetment, be punished with imprisonment of either description for a term which may extend to seven years.
3. It is argued that the words 'no express provision is made by his Code for the punishment of such abetment' exclude the application of Section 115, inasmuch as Section 117 is an express provision for cases of abetment of the kind which was committed in this case. The learned Advocate-General urges that the cases referred to by the words express provision' refer to sections such as 121 and 131, I.P.C., where there is an express provision for abetting an offence punishable with death or transportation for life; and this seems to bo the proper interpretation of the section. Section 117 is not an express provision for abetment of an offence punishable with death or transportation for life. It covers all offences and is a general provision for abetment by any number of persons exceeding 10. 'Express provisions' seem to refer to sections in which specific cases of abetment of offences punishable with death or transportation for life are dealt with. It is not disputed that the learned Judge is not correct in holding that abetment under Section 115, I.P.C., must be abetment of the commission of an offence by any particular person against any particular persons. It may include abetment of the commission of an offence by unspecified persons against a class or number of other persons described generally and not particularly specified. In this case when the people who gathered together in these meetings were instigated to commit an offence punishable with death in fact, the offence of murder, they clearly come under Section 115 as well as under Section 117, I.P.C.
4. The only other point urged is that inasmuch as the Judge and the jury agree as regards the finding that the accused is not guilty of the offence charged under Section 115, I.P.C., it is not open to us to find him guilty on that charge. Under Section 307, Criminal P.C., in dealing with the case submitted, this Court may exercise any of the powers which it may exercise on an appeal; and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused. From the letter of reference it is quite clear that the whole case is open for consideration and all we are to do is to give due weight to the opinions of the Judge and the jury and then acquit or convict the accused. In support of the argument on the contrary we have been referred to two cases, Emperor v. Madan Mandal AIR 1915 Cal 292 and Emperor v. Profulla Kumar AIR 1923 Cal 453. But admittedly neither of these two cases supports entirely a proposition that this Court cannot interfere where the whole case is referred under Section 307, Criminal P.C. In the latter case the Judge has expressly found that it was not necessary to decide that question: and in the former case although there is a statement that the Judge has no power to interfere with the unanimous verdict of the jury with which the Judge agrees, the facts were entirely different and this dictum must not be taken to apply in general. In support of this, reference may be made to the case of Emperor v. Hasrat Mohani AIR 1922 Bom 284. But the words of the section are quite clear and that obviously entitle this Court to exercise any of the powers which it may exercise on an appeal; and in Clause (2) it is laid down that
whenever the Judge submits a case under this section he shall not record judgment of acquittal or of conviction on any of the charges on which the accused has been tried.
5. In this case therefore the whole case has been referred and it is open to us to find the accused guilty under Sections 115/302 or-Sections 117/302, I.P.C. Accordingly we find the accused has committed the offences with which he has been charged. Evidence shows that the offences charged were committed on both the occasions with deliberate intention of instigating a large number of young persons of Sylhet to commit murder and we think we should not be justified in passing a sentence of less than three years rigorous imprisonment on account of each of the two sets of offences under Sections 115/302, I.P.C. to run concurrently, no separate sentences being passed under Sections 117/302, I.P.C. The accused should be put in division B. He must surrender to his bail and serve out the sentence.