1. The appellant in this case, Benoy Bhusan Chatterji, was placed upon 'his trial along with two other persons Jamini Karmakar and Monoranjan Kundu, before the learned Additional Sessions Judge of Alipore. These three persons were originally committed to the Court of Session and the committing Magistrate charged all three of them under Section 120-B read with Section 302, I.P.C. He also charged the present appellant Benoy under Section 302, I.P.C., and the other accused, Monoranjan and Jamini, under Section 302/34, I.P.C. When the three accused persons were brought before the Court of Session, the Public Prosecutor withdrew the charges under Section 302 and Section 302/34 with the consent of the Court and an order was recorded acquitting the accused on these charges. The charge on which the trial actually took place was as follows:
That you (namely the three accused persons) along with Ujjalendu Ganguly, Kshiroda Devi and others were parties to a criminal conspiracy and agreed to do or caused to be done an illegal act, to wit, the commission of murder of Bibhuti alias Sankar alias Bibhuti Banerji and the said murder was done in pursuance of that conspiracy and thereby committed an offence punishable under Section 120-B/302, I. P.C.
2. After this amendment of the charges and on the application of the Public Prosecutor the trial proceeded not before a jury but with the aid of assessors. The case for the prosecution rests mainly on the evidence of the approver, Ujjalendu, whom the learned Judge himself characterizes as 'a self-confessed participant in a murder and a self-confessed betrayer of his associates in crime.' The gist of the approver's story is as follows: He belonged to a gang of dacoits and the deceased Bibhuti, Benoy, and his co-accused Jamini and Monoranjan were also members of that gang. The accused Benoy had a sister called Kamala with whom Bibhuti fell in love. About the middle of Agrahayan 1342 B. S. the approver went to Benoy's house where he was informed by Benoy's mother of this affair. This lady suggested to him that the gang should remove Bibhuti from the world. The appellant also requested the approver to help them in the matter and the approver said that he would take time to consider it.
3. Some days later the deceased, Bibhuti attempted to coerce the approver into helping him to take away the girl Kamala and this, according to the approver, led him to decide to join the conspiracy. He accordingly informed the appellant Benoy, from whom he gathered that Jamini and Monoranjan had also agreed to help him in killing Bibhuti. In accordance with this agreement the appellant Benoy and the approver bought a dao on 9th December 1935 in a cutlery shop in Calcutta and on the next day they set out with the deceased Bibhuti in order, as they said, to commit a burglary in a house in Mutiapara. They were joined by the other two accused, but owing to a hitch they did not attempt the burglary and the deceased then expressed a wish to return home. The appellant Benoy said that if they were found moving about so late they would be arrested on suspicion by the police and suggested that they should wait where they were until morning. This suggestion was accepted and all the five men sat down to wait at a place some distance away from the house. In the early hours of the morning Bibhuti fell asleep. The appellant Benoy then sent the approver a short distance away to keep watch. The accused Jamini also stood at a short distance and the appellant Benoy attacked the sleeping Bibhuti with a dao and cut him through the back of his neck. The accused Monoranjan also struck him with a hunter. Bibhuti's head was severed from his body. The body was left there and the head and the dao were thrown into the lake close-by by the appellant Benoy.
4. On 10th December, the police discovered the headless body and four days later found the head floating in the lake. The deceased was identified, but nothing further was discovered until the following March when the approver was arrested in connexion with another affair and disclosed the facts of the present murder. On these allegations the three persons, the present appellant and Jamini and Monoranjan, were sent up. The subsequent charge of murder against Benoy and the charge against the other accused under Section 302 read with Section 34 were, as I have said, with-drawn and the three men were tried on a charge framed under Section 120-B/302, I.P.C., that is to say conspiracy to murder. The learned Judge has acquitted Jamini and Monoranjan on that charge, but has convicted Benoy and sentenced him to transportation for life.
5. As the learned Judge has observed, there is no direct evidence in the case except that of the approver and that evidence is even less worthy of belief than that of an ordinary approver. In connexion with his evidence the first point to be noted is that he tried to establish that he himself took no part in the murder. According to his own story he was sent to keep watch and it is pointed out by the Judge that possibly on that account his evidence does not tally with what was disclosed in the postmortem examination. Moreover, it appears to be perfectly clear that if the case is to be founded, as it has been founded on the evidence of the approver, the offence was one of murder pure and simple and that the charge of conspiracy substituted by the learned Judge after the withdrawal of the major charge was one that was entirely misconceived in the circumstances of the particular case. What the practical effect of this alteration in the charges has been is that the appellant was deprived of his right to be tried by a jury.
6. In view of the position indicated by the learned Judge that the only direct evidence in this case was that of the approver, it is necessary to consider to what extent that evidence has been corroborated in material particulars by the extraneous evidence adduced on behalf of the prosecution. On the findings of the lower Court itself that extraneous evidence was entirely insufficient to establish the guilt of the other two accused, that is to say to establish their participation in an agreement to murder.
7. The point then arises to what extent does the evidence corroborate the approver's statement that the appellant agreed with him and others to commit the murder. This question is further narrowed by the consideration that the only co-conspirator now before the Court is the approver himself. The learned Judge summarizes the outside evidence against the appellant Benoy as follows: He says in the first place that the evidence of the approver, if taken to be true, would prove participation not only in the conspiracy, but in the actual killing of Bibhuti. Of course this statement is undoubtedly correct and it means that if the evidence of the approver is accepted as true, the appellant should have been charged with and convicted of murder.
8. The circumstances upon which fete learned Judge relied in corroboration of the approver's story of conspiracy are these: In the first place he says that there is evidence that the appellant used to visit the approver in his house. Secondly, there is evidence that the deceased and the appellant lived together and that the de-ceased practically supported the family of the appellant. Thirdly, there is evidence of illicit relationship between the deceased and the appellant's sister, Kamala. Fourthly there is evidence that the appellant and the approver purchased a dao although, as the learned Judge himself points out, the prosecution have failed to identify this dao with the dao found after the murder or indeed to prove in what circumstances the dao actually produced in Court was found at all. Then the learned Judge refers to the fact that certain pieces of cloth were found in the house of the appellant from which parts had been either snipped or burnt and to the fact that Kamala and her mother left for Nabadwip after the occurrence and remained there for some months.
9. It seems perfectly evident that whatever be the value of this evidence as corroboration of the approver's story that the appellant actually murdered Bibhuti, it is no corroboration at all of the allegation that there was any agreement between the appellant and the approver to do so. In that connexion it is interesting to analyze the evidence of the approver himself. His story is that the first suggestion of the murder was made by the mother of the appellant at the house of the appellant on a certain date in Agrahayan 1342 B. S. At that time the appellant requested the approver to help them in the matter telling him that if he joined them they could kill Bibhuti. The only other occasion, according to the approver, on which this matter was broached between them, was on one subsequent and specified date on which the approver said that as he had been annoyed with the deceased he told the appellant about this and, agreed to join in killing Bibhuti. He gathered then that Jamini and Monoranjan had also agreed to help him in doing so.
10. According therefore to the evidence of the approver, the alleged conspiracy was mooted on two previous occasions and it is perfectly clear from what has been already stated that no part of the corroboration has any reference whatsoever to these two occasions. The corroborative evidence is worthless with respect to the charge actually framed and cannot possibly be used to justify a conviction on that charge. In the result this appeal must be allowed. The finding of the learned Judge convicting the appellant under Section 120-B/302, I.P.C., and sentencing him to transportation for life must be set aside. The question then arises whether in the circumstances of this particular case we should direct that the appellant should be re-tried on a substantive charge of murder, a charge upon which, as we have already pointed out, he should have been tried ab initio. We have given serious consideration to this question and are definitely of opinion that in view of the evidence upon the record and the nature and quality of the so-called corroborative evidence and of the character of the approver himself we ought not, in this particular case, to direct that the appellant be again placed upon his trial before a jury upon a substantive charge of murder. In this view of the matter the pre-sent appeal must be allowed, the conviction and sentence of the appellant must be set aside and he must be acquitted.
11. I agree. As soon as the Public Prosecutor read the brief he must have realized that the case was an extremely weak one. It would be impossible to convict any of the accused persons of anything unless the evidence of the approver is accepted as true. If the evidence is true, there can be no doubt at all that the present appellant murdered the deceased. There was therefore no justification for the course adopted by the learned Public Prosecutor in withdrawing the charge of murder and substituting a charge of conspiracy.
12. In the course of his argument before us the learned Deputy Legal Remembrancer suggested that the reason why this course was taken was that it was considered that the corroborative evidence was insufficient to support a conviction of murder, but quite sufficient to support one of conspiracy. There is an air of jitter unreality about this argument. Not a single one of the circumstances upon which the prosecution relied could be taken as corroborative of the story of conspiracy but not corroborative of the story of the actual murder. I will refer to two of them as an illustration. The prosecution called evidence to show that the deceased was carrying on an intrigue with the appellant's-sister and they wanted to suggest that this was a motive for the crime. They further called evidence to prove that the weapon with which they alleged that the murder was committed was purchased by the appellant. It is a mere commonplace to find evidence of this kind brought to sup-port a charge of murder. I cannot conceive that anybody would suppose that, if this did not corroborate the story of the approver that the appellant murdered the deceased, it corroborated the story that he and the approver conspired to do so. It cannot even be pretended that the course adopted in this case was reasonable.
13. Furthermore the learned Judge has not even followed the matter to its logical conclusion. If the prosecution were really serious in the attitude adopted, the Public; Prosecutor himself should have pointed out that the case comes within Section 115, I.P.C., for which the maximum sentence would be seven years. The learned Judge has sentenced the appellant to transportation for life on a finding that the deceased was actually murdered in pursuance of the conspiracy. The only evidence to prove this is the evidence of the approver that the appellant himself committed the murder. The fact that the learned Judge saw-fit to pass this sentence shows how unreal the attitude of the prosecution was.
14. So long as the system by which charges of specific offences are heard by one tribunal and charges of conspiracy to commit those offences upon identically the same evidence are heard by another tribunal is allowed to continue, abuses of this kind will occur, unless Judges presiding over the Courts of Session are careful to be both alert and vigilant. The result in the present case is that the appellant has been deprived of his right to a trial by a jury. Nothing would induce me to uphold such-proceedings and the only practical question-is whether we should direct him to be re tried. For the reasons given by my learned brother, I do not consider such a course to be justifiable.