1. The appellants were tried by the learned Assistant Sessions Judge, Alipore, with the aid of a jury on a charge under Section 304, Penal Code read with Section 34, Penal Code. The jury returned a unanimous verdict of guilty against both these appellants under Section 304 Part II, Penal Code. In accordance with that verdict the learned Judge convicted these appellants under Section 304, Penal Code and sentenced each of them to undergo rigorous imprisonment for five years.
2. It may be mentioned that another person named Fani Mondal was also tried along with these persons on the same charge and the Jury returned a unanimous verdict of guilty against him under Section 324, Penal Codeand in accordance with that verdict he was convicted and sentenced to rigorous imprisonment for two years. He is not one of the appellants before us,
3. The prosecution case was that on 29-3-1950, when Nani Haldar was seated along with these two appellants and one Fani Mandat near, the house of one Sabur Ali, Nani Haldar demanded payment of the monies due to him and during the altercation which ensued Karam Shaikh alias Karam Ali, Hussain Sheikh and Fani Mandal struck him with the hesuas in their hands. A large number of injuries were. inflicted as a result of which Nani Haldar died. Shortly after the occurrence Nani Haldar was discovered lying there in a moribund condition. He received medical attention and it was said that he was able to name his assailants. The defence of the accused who pleaded not guilty was that they were falsely implicated in the case because of their enmity with certain persons including one Bajesh.
4. Mr. Mukherjee appearing for the appellants contended that the learned Judge's charge to the jury was vitiated by a number of misdirections. One of the misdirections, according to him, was that the omission of the learned Judge to caution the jury that it is ordinarily unsafe to base a conviction on the mere evidence of a dying declaration. In my judgment this contention should succeed. When the evidence of dying declaration is admitted under the provisions of Section 32, Evidence Act it is necessary for the Jury as judges of facts to take this into consideration along with other evidence, and they are entitled in law to base a conclusion on it. But the experience of Judges has been responsible for the evolution of the rule of prudence that it is ordinarily unsafe to base a conviction on the mere statement of the dead man, as this was not tested by cross-examination and was not made on oath and the jury had no opportunity of seeing the demeanour of the maker. It has been laid down in a number of cases that it is necessary for the Judge when a case is being tried by the jury to tell the jury of all these considerations in deciding what weight should be attached to the evidence of a dying declaration. If and when the Judge gives such a caution and in spite of this the jury bases a conclusion on a mere dying declaration there can be no justification for interfering with that verdict. The omission to give such a caution has, however, been held to amount to a misdirection and I respectfully agree with that view. Our conclusion, therefore, is that the learned Judge has misdirected the jury in not cautioning them, in the way as mentioned above.
5. It is necessary, therefore, to go into the evidence to see whether the verdict of the jury is justified by the evidence op the record. If the evidence on record does justify such a conclusion then it must be held that the misdirection has not resulted in the failure of justice. If on the other hand the verdict of the jury is not justified by the evidence on record it is equally clear that there has been a failure of justice. (Accordingly after discussing the evidence their Lordships concluded:) We are bound, therefore, to hold that the evidence on the record does not justify the verdict of guilty against the accused persons that has been returned by the jury and consequently, to hold that the misdirection in the learned Judge's:charge to the jury has resulted in the failure of justice. The order of conviction and sentence, passed on such verdict of the jury cannot be allowed to stand.
6. Accordingly, we set aside the order of conviction and sentence passed by the learned Assistant Sessions Judge against the appellants and order that the appellants Hussain Sheikh and Karam Sheikh be acquitted. They mustbe set at liberty at once.