1. The appellants in this case, Nural Amin, Gannu Meah and Kabir Ahmad, were convicted by the Assistant Sessions Judge of Chittagong (1) of an offence under Section 436/34, I.P.C. and (2) of an offence under Section 120-B, I.P.C., the trial of the former being by jury and the latter with the aid of the same jurors as assessors. Briefly, the prosecution story is that the appellants and others (1) in furtherance of the common object of all, committed mischief by fire by setting fire to certain timber shop on 7th February 1938 and (2) agreed with one another to do an illegal act, viz. to cheat various Insurance Companies by (a) causing the aforesaid shop to be burnt down, and (b) obtaining money from the Insurance Companies on fraudulent misrepresentations as to the cause of the fire and the amount of the damage done. To deal with the second charge first. The evidence against the appellants consists mainly of the statements of the approver P.W. 14, Furrok Ahmed, and P.Ws. 9, 11, 15, 16, 17, 19, 20, 21, 22, 27, 36 and 40.
2. The approver P.W. 14 states that one day, some time before the occurrence, Nural Amin took him to the shop of Amir Ali (P.W. 15) and there talked to him about setting fire to the shops and getting the insurance money. Then on the date of the occurrence itself, Nural Amin's brother Eshaque took witness to Nural Amin's shop, where appellants Gannu Meah and Kabir Ahmad and others were already assembled. Some time later, Nural Amin arrived with two tins of petrol. Then, after the party had had some tea, Nural Amin said : 'I had spoken to you of insurance before. Today the shop-houses are to be 'burnt down.' Witness at first refused to help, but was prevailed upon by Gannu Meah and Kabir Ahmad. So, witness Eshaque and some others went first to Gannu Meah's shop, then to Kabir Ahmad's shop, and then to various other shops, in each of which they tied some kerosene-soaked gunny bags to beams and rafters and also spread some over the timber. Witness then returned to Gannu Meah's shop, where after a while, Nural Amin, Gannu Meah, Kabir Ahmad and others arrived by car. All of them inspected the gunny bags and other arrangements and asked witness and others to pour petrol over the timber, which they did in Gannu Meah's shop and other shops. Finally, witness and Eshaque set fire to the shop of Haji Amin Shariff, while others did the same to Gannu Meah's shop.
3. This story has been amply corroborated by other testimony. We have first of all the important and significant circumstances that successive shops of Nural Amin, each of them insured, have been burnt down in 1935, 1936 and now in 1938. P.W. 9, Nanuram Tewari, speaks to the events of 1935, when Nural Amin got Rs. 589-8-0 from the New Zealand Insurance Company on account of loss by fire. P.W. 11, Jitendra Nath Sen, speaks to the fire of 1936 when Nural Amin got Rs. 9500 from Lloyds. The shop burnt down on the present occasion was also insured with Lloyds. These successive fires indicate, as indeed has been said in Illus. (a) to Section 15, Evidence Act, that they were not accidental but part of a design in which Nural Amin must necessarily have had a share.
4. Secondly, we have the evidence of P.W. 15 Amir Ali who says that six or seven days before the occurrence the appellants and others were at his tea stall and talked about setting fire to their insured shops. The mere fact that this witness did not reveal his knowledge of the intended crime to the proper authorities is not sufficient to make him an accessory or accomplice so as to vitiate his evidence, which certainly goes to show that all the appellants (amongst others) were in the conspiracy. (The judgment then discussed the evidence and proceeded.) All this amounts to a mass of corroboration by proof of conduct before the fire, at the fire and after the fire, which might indeed have justified a conviction of the appellants, even apart from the statements of the approver. The assessors and the learned Assistant Sessions Judge who had an opportunity of seeing and hearing the witnesses that gave this evidence have accepted it and there is no sufficient reason why it should be disbelieved. The conviction and sentences under Section 120-B, Penal Code, must therefore be upheld. Turning to the charge under Sections 436/34, Penal Code, which was tried by jury, we are unable to find any misdirection by the learned Assistant Sessions Judge, such as would justify any interference with the verdict. Nor, having regard to the nature of the offence, can the sentences be said to be severe. In the result this appeal must be dismissed. The appellants must now surrender to their bail and serve out the remainder of their sentences.
5. Before parting from this case, we should like to invite attention to an anomaly resulting from the present state of the notifications under Section 269(1), Criminal P.C. Under this sub-section, the Provincial Government is competent to notify from time to time what offences, before any Court of Session, shall be triable by jury, the offences not so notified being triable with the aid of assessors by virtue of Section 268. We are informed that under the notifications now in force, whereas certain offences are triable by jury, a mere conspiracy to commit any of them is not so triable. Thus, if two persons are charged with arson jointly designed, the trial has to be by jury; the jury has to decide, and is considered competent to decide, not only whether there was a common design to commit arson, but also whether the arson was actually committed in furtherance of the design. If however they are charged with a mere conspiracy to commit arson, the trial has to be with the aid of assessors; a jury is apparently incompetent to decide whether there was a mere agreement to commit the offence. In other words, a jury is good enough to decide two questions but not only one of the two: this seems hardly logical. Where, as in the present case, a charge in respect of the completed offence is combined with a charge of conspiracy, other complications result. Thus, in appeal, this Court has to go into the facts as regards the conspiracy, but cannot do so as regards the other charge. If the Court should find on the facts that there is no satisfactory proof of conspiracy, the appellants have to be acquitted on that charge; but their conviction in respect of the completed offence may have to stand in the absence of any misdirection to the jury. To hold that there was no agreement amongst the appellants to commit the offence and at the same time to maintain a conviction on the footing that they did commit the offence in furtherance of the common intention of all of them is hardly a consistent position. Fortunately, in the present case, this situation has not arisen, for we have found on the facts that there was a conspiracy; but the possibilities of an anomaly are still there, and some sort of revision of the notifications under Section 269(1), Criminal P.C., appears to be called for.
6. I entirely agree.