1. These three appeals have been heard together. Nine persons in all were put upon their trial in connection with the murder of a doctor named Amulya Sankar Chakravarti. There was a common charge against them all under Section 120-B read with Sections 302 and 201, Penal Code. Two of them were also charged with a substantive offence each, accused Upendra Nath Dutt, a Sub-Inspector of Police, under Section 204, and accused Bazlar Rahaman under Section 364. The trial was by jury. By a majority verdict, five of the accused, namely Upendra Nath Chakravarti (No. 2), Bazlar Rahaman (No. 6), Bejoy Kristo Roy (No. 7), Benoy Bhusan Roy (No. 8), and Upendra Nath Dutt (No. 9) were found not guilty of the main charge of conspiracy, but the remaining four, Goloke Behari Takal (No. l), Kalipada Bag (No. 3), Shamapada Bag (No. 4) and Khalil Mal (No. 5) were found guilty. The learned Sessions Judge accepted the verdict, and acquitted the first five, while he convicted the other four and sentenced them each to transportation for life under Section 120- B read with Sections 302 and 201. The jury by a majority also found Upendra Nath Dutt (No. 9) guilty under Section 204 and Bazlar Rahaman (No. 6) under Section 364. Accepting this verdict, the learned Judge sentenced Upendra Nath Dutt to pay a fine of Rs. 200, in default to undergo rigorous imprisonment for six months and Bazlar Rahaman to rigorous imprisonment for eighteen months. Six of the accused have thus been convicted, and all of them have appealed to this Court, excepting Bazlar Rahaman. Appeal No. 162 of 1937 is by Goloke Behari Takal, Appeal No. 189 of 1937 is by Kalipada Bag, Shamapada Bag, and Khalil Mal and Appeal No. 210 of 1937 is by the Sub-Inspector Upendra Nath Dutt. Mr. Hiralal Ganguli appears for the appellant in the first appeal and Mr. Sudhansu Sekhor Mukherjee for the appellants in the other two appeals. Mr. D. N. Bhattacharjee represents the Crown in all the cases.
2. The accused had been first placed on their trial before Mr. S. N. Guha Roy, Additional Sessions Judge of Howrah, and a special jury of nine persons. In the course of the trial an application was made by the Crown to this Court for discharging the jury and ordering a new trial, but this was rejected. One of the jurors died later, and the same object was thereby indirectly secured. A fresh trial commenced before another Additional Sessions Judge, Mr. S. Chakravarti, with a new special jury of nine, with the result already stated. Seventy-five witnesses in all were examined on behalf of the prosecution, of whom 37 had been examined at the previous trial. The defence did not examine any witnesses. The trial before Mr. S. Chakravarti commenced on 1st December 1936 and ended on 3rd February 1937.
3. The prosecution case, very briefly stated, was this: The deceased who was an M. B. of the Calcutta University of a few years' standing was practising in a village known as Basantapur within the jurisdiction of the Amta Police Station in the District of Howrah. He was staying at the time in the house of Goloke Behari Takal, accused 1 in the case and appellant in Appeal No. 162. He was missed on and from the evening of Sunday the 29th September 1935. The last that was seen of him that evening was in an arum thicket (kachuban) in the village, a few feet away from the road side, where according to three eye-witnesses he was being assaulted with short clubs or khetis. Eight or nine days later, a severed human thigh and full human arm without the palm and a few bones were discovered in a neighbouring field called Harishpur. This was followed by subsequent finds of a human spinal column on 2nd January 1936, and of pieces of a human skull, jaw, and five teeth on 24th February 1936. It is said these dismembered parts were all parts of the missing doctor's body. A bicycle was also recovered from a bil known as Danrapur tank on 30th December 1935 and a silk shirt and a genji on 2nd January 1936. These articles were all said to have belonged to the doctor. The main charge against the nine accused was framed in the following terms:
That you, between the beginning of Bhadra of 1342 B. S. till the end of aswin of the same year, corresponding to middle of August 1935 till middle of October 1935, at Basantapur, Chaldakhali, Penro, Danrapur, Harishpur, Amta within Amta Police Station and other places, were parties to a criminal conspiracy amongst yourselves and with Abir Kaji absconder, Satia Banerjee, Monmotha Ghose, Anil Bhusan Roy, Suren Patra and others known and unknown, to commit murder of Dr. Amulya Sankar Chakravarti of Basantapur and to cause the evidence of that murder to disappear with a view to screen yourselves and other conspirators and in pursuance of that conspiracy the murder of the said Dr. Amulya Sankar Chakravarti was committed by the members of the conspiracy and the dead body was out into pieces-in some oases beyond recognition and scattered and concealed, and other belongings of the said doctor, e. g. the shirt, the genji, the cycle and other articles, which the doctor had on his person at the time of the murder, were also concealed with the intention of causing the evidence of murder to disappear, and by other acts the disappearance of the evidence of murder was helped with a view to screen yourselves and other conspirators, and thereby committed an offence punishable under Sections 120-B/302 and 201, Penal Code, and within the cognizance of the Court of Session.
4. It will be seen: (1) that the charge covered a period from 1st Bhadra to 30th Aswin 1342 B.S., i.e. from 18th August to 17th October 1935; (2) that the conspiracy was one amongst the accused and with persons known and unknown; (3) that the conspiracy was one to commit murder and cause evidence of the murder to disappear; and (4) that in pursuance of the conspiracy, the murder was actually committed and evidence made to disappear. The conspiracy charged was in fact one single conspiracy to commit murder and to cause evidence of murder to disappear, and though being a conspiracy to commit an offence or offences, it was not necessary under the Proviso to Section 120-A to allege or prove overt acts, the prosecution still set out in the charge the overt acts constituting the offences in respect of which the conspiracy was charged. No substantive charge was however laid in respect of the main offences, although it was definitely the prosecution case that the murder had been committed by the members of the conspiracy.
5. It may be useful at this stage to give a few relevant facts and dates. As already stated, the deceased doctor was missed since the evening of Sunday the 29th September 1935. His wife had been staying with him at the time with two infant daughters in Goloke Behari Takal's house at Basantapur, but his brother and other relatives were in Calcutta. The first report that he was missing was given to the doctor's brother Nirmal Sankar Chakravarti (P. W. 1) in Calcutta on the 1st October by his compounder Matilal Roy (P. W. 64). Matilal Roy was again in Calcutta on the 2nd October to fetch the brother, and returned the next day (3rd October) with Nirmal Sankar and another person named Haro Mohan Rakshit, a friend of the deceased. On the way, they were joined in the train by Mustan Ali Mallik (P. W. 48), Vice-President of the Basantapur Union Board, who was also a great friend of the missing doctor. These persons, along with another friend of the deceased, Shyamkinkar Banerjee (P. W. 37), all went to Amta Thana the same day. It may be mentioned here that these two men Mustan Ali Mullick and Shyamkinkar Banerjee with two others, Basan Khotal (P. W. 38) and Rohini Chakravarti (P. W. 40), both of Basantapur, are charged by the defence as having been mainly responsible for engineering the prosecution case; they are all said to be bitter enemies of one or more of the accused. The party reached the thana at about 3 P. M., but the officer in charge, Sub-Inspector Upendra Nath Dutt (accused 9), was not there at the time. Nirmal Sankar here lodged the first information and according to the evidence of Nirmal, Mustan Ali and Shyamkinkar, he named 7 persons whom ha suspected as having either murdered or confined his brother. Nirmal admits that ha gave these names on information supplied by Mustan Ali and others.
6. In the absence of the officer in charge, the ejahar was taken down by A. S. I. Keshablal Das (P. W. 50). It is said that this A. S. I. recorded this information on a loose sheet of paper which was afterwards thrown away and a mere missing report entered in the diary under the orders of the second S. I. Aswini K. Sandar (P. W. 65). On the same data Haro Mohan Rakshit (since deceased) brought down the doctor's wife from Basantapur to Calcutta. The next day (4th October) Nirmal Sankar filed a petition (Ex. 1) before the D. S. P., Howrah (P. W. 46), praying that an officer of the Detective Department might be deputed to take up the investigation. Ha stated that from information received from some local people, there was no doubt that his brother has been killed, and he actually mentioned the names of seven persona as 'strongly suspected in the murder'. They included five of the accused, namely Goloke Takal (No. l), Upendra Chakravarti (No. 2), Kalipada Bag (No. 3) Shamapada Bag (No. 4) and Benoy Bhusan Roy (No. 8). Accused No. 3 Khalil Mal's name was not in this petition. The reason he gave in the petition for his prayer was that 'there was every possible chance of the dead body being discovered' and that 'a wide conspiracy had been made to do away with his brother'. The D. S. P. endorsed an order on the petition asking the O. C., Amta P. S. to 'look into this, take up a case and investigate'. The officer in charge was the accused Upendra Nath Dutt, and on the next day (5th October) Nirmal took the D. S. P's order to him at Amta. One Sudhir Chandra Bose (P. W. 67), another friend of the missing doctor, was with Nirmal. It is said that the Sub-Inspector, after detaining these persons for a long time at the Thana, made a move to Basantapur in the evening, and left that village after a very slipshod enquiry. At the suggestion of the Sub-Inspector, Nirmal and Sudhir passed the night at Mustan Ali Mullick's house. During the night, Mustan is said to have divulged certain 'facts to Nirmal and Sudhir which led them to believe that they could not expect any assistance from the Sub-Inspector in the matter of the investigation.
7. It appears that earlier in the day on the same date (5th October), A, S. I. Ashutosh Das (P. W. 49) had been deputed to Basantapur by the Sub-Inspector, and on the way Mustan Ali pointed out to him the arum thicket, where he saw the arum slightly broken. According to Shyamkinkar Banerjee (P. W. 37), ha had noticed some marks of struggle in this thicket the previous morning. Mustan Ali showed these marks to Sudhir (P. W 67) on the morning of the 6th October. At mid-day on this date Nirmal and Sudhir left Basantapur for Calcutta. According to a statement elicited from Sudhir Bose in cross-examination at the previous trial (as P. W. 3), Matilal Roy came to Calcutta on the next day (7th October) and reported that a jackal had dug out something which was a part of a human body, but which he added was not the doctor's. The defence complain that the jury's attention was not directed to this statement. On the same day (7th October) Nirmal Sankar submitted another petition to the S. P. Howrah, through the Circle Inspector of Uluberia, Jatindra Mohan Deb (P. W. 63), asking, that an officer might be deputed to investigate into the case thoroughly. He stated that he had been to Basantapur and searched for his brother at various places, but could not get any trace of him, and ha suspected foul play. It is just as well that the endorsement made by the Circle Inspector on this petition under date 8th October 1937 be set out here:
To S. P. This is a' serious matter, and a thorough and prolonged enquiry is necessary to ascertain the truth. On 23rd September 1935 the doctor filed a petition before the S. D. O. stating that his life was in danger. He also made some serious allegations against the O.C., S.I Upendra Nath Dutt. . . In view of these circumstances D. D. I. may be asked to depute an officer to make a sifting enquiry,
8. On this, the S. P. noted to D. D. I. 'Please depute one of your officers at once.' The next day (8th October) Nirmal received a telegram from Mustan Ali Mullick from Amta Thana in Calcutta : 'Dead body found out. Come.': (Ex. 3). With that message, Nirmal, accompanied by his father-in-law and another relative, hastened to the Circle Inspector's house at Uttarpara, but not finding him there traced him at his father-in-law's place in Calcutta. This was about 1.30 a. m. in the morning of 9th October. On this day a police party consisting of the Circle Inspector and a C. I. D. Officer, Panchanon Ghose, attached to the Howrah Detective Department (P. W. 74), accompanied by Nirmal, his father- in-law and Sudhir Bose (P. W. 67), came to Basantapur and proceeded to Harishpur field where a number of village folk had already collected, S.1. Upendra Nath Dutt was also with them. Here they found a severed human thigh and a human arm (minus the palm) and a few bones, and also noticed certain marks on an ail or ridge and blood spots on grass. It is said that witnesses Matilal Boy (P.W.64) Bhim Bahadur (P. W.66), Shyam. kinkar (P. W. 37) Mustan Ali (P. W. 48) and Basan Khotel (P. W. 38) had noticed these marks the previous day. Panahanon Ghose's evidence is that he took charge of the investigation under the verbal orders of the Circle Inspector in Harishpur field on this date. While hero, Panchanon saw a piece of paper in Upendra's hand which the latter admitted to be a statement made to him by Mustan Ali regarding the case on the previous day. This is the statement 'which accused Upendra Nath Dutt is alleged to have secreted or destroyed and in respect of which the specific charge under Section 204,I.P.C., has been brought against him. Panchanon himself held an inquest over the fragments of the dead body on the spot. The inquest report is said to have been signed by Shyamkinkar, Basan Khotel, Danda Pani Chakravarti (P. W. 34), Rohini Chakravarti (P. W. 40) and Upendra Nath Dutt among others, but not by Nirmal. According to the evidence of the Circle Inspector (P, W. 63) none of the witnessess made any definite statement that the arm was Amulya Sanker's or that it bore any mark of identification: nothing definite was said about the thigh also, but their 'conviction' was that those were parts of the missing doctor. Nirmal's evidence is that he did not notice any special mark of identification on the arm or thigh, nor did he inform the investigating officer or anybody else that he had recognized the severed limbs as those of his brother. On 10th October the first arrest was made, that of accused 1 Goloke Behari Takal.
9. On 5th December following, that is to say, more than two months after the alleged occurrence, the investigating officer, Panchanon Ghose, submitted the first charge-sheet against 6 of the accused, not including Upendra Nath Dutt. A supplementary charge-sheet was submitted on 23rd January 1936 against accused Benoy Bhusan Roy, Upendra Nath Dutt, Bejoy Kristo Roy and Upendra Nath Chakravarti. The names of several other persons are mentioned in the charge as being in the conspiracy, but no charge-sheet was submitted against them, one only being shown as an absconder. To complete the narrative, it is necessary to refer to the other finds already mentioned which followed on 30th December 1935, 2nd January 1936 and 24th February 1936. A photograph of the dismembered limbs was taken on 9th October 1935, and of the arum thicket on 24th October 1935. It may be stated that a first information report (Ex. 63) was lodged by the S. I. Upendra Nath Dutt at Amta Thana on 9th October 1935, in respect of an offence under Section 302, I.P.C., the place of occurrence being mentioned, as Harishpur field.
10. The defence was a complete denial of the charge of conspiracy and it was said that the case had been falsely engineered by the enemies of the accused. They stoutly challenged the identification of the parts of the dead body as those of the deceased doctor. They further alleged that there was a deep-laid conspiracy in the Police Department against S. I. Upendra-Nath Dutt, which, according to them, accounted for a good deal. It appears that the investigating officer, Panchanon Ghose, made a report to the Circle Inspector on 12th October, in which he stated as follows:
It is a most sensational case, and a vary strong, party faction exists in the village. I have received no material help from the local police.
11. It is in fact a remarkable feature in the case that the Sub-Inspector who would in the normal course be the investigating officer is himself an accused. Having regard to the nature of the case, it is not surprising that the evidence was allowed to cover' an extensive ground. But it is not difficult to distinguish the main events which the prosecution undertook to prove. Broadly speaking, there was first the alleged conspiracy, and on this point the evidence would mainly be of facts antecedent to the alleged murder; subsequent events would be relevant but chiefly as confirmation or corroboration. Then, there was the specific incident of assault on the doctor in the arum thicket on the evening of 29th September. Lastly, and this was probably the most important matter, there was the find of the dismembered parts of a dead body and their identification as those of the missing doctor.
12. The appeals have been argued at length before us. At the conclusion of the hearing, we announced our decision regarding two of the persons convicted, namely Upendra Nath Dutt (No. 9) and Bazlar Rahaman (No. 6), stating that we would give our reasons later. We reserved our orders regarding the rest. Bazlar Bahainan had not preferred an appeal to this Court, but as the record was before us, we felt justified in dealing with his case in exercise of our powers of revision under Section 439, Cr. P.C. As regards Upendra Nath Dutt, the learned Judge was of opinion that there was very little of a case against him. The Deputy Legal Remembrancer with his usual fairness did not contest this view, with which we agreed. We were not satisfied that the ingredients of an offence under Section 204, I.P.C., had been established against him. We consequently set aside his conviction and sentence, and directed that he be acquitted. We also ordered that he should be discharged from his bail bond; the fine, if paid, must be refunded. This disposes of Appeal No. 210 of 1937. As regards Bazlar Rahaman, we were of opinion that the evidence was not sufficient to support his conviction under Section 364. This is a section which, as this Court has had occasion to point out more than once, is often misapplied. For a conviction under this section, it is necessary to show that there was a pre-conceived plan for committing the murder : Abdul Gaflur Khan v. Emperor (1936) 41 CWN 287. As the learned Judge himself told the jury, there is no evidence worth the name that this accused 'associated with any of the others for doing any mischief, murder or grievous hurt to the doctor'. He was in fact acquitted of the main charge of conspiracy to murder, and the learned Judge directed the jury that in his opinion this charge could not be sustained. The Deputy Legal Remembrancer, fully appreciating this, himself suggested that we should exercise our powers under Section 439, Cr. P.C., in favour of this accused. We accordingly directed that he should be acquitted of the charge under Section 364 and set at liberty at once.
13. In regard to the other four accused, a preliminary point was taken that although this is an appeal from a trial by jury they were entitled to appeal on fact as well as on law. Section 410, Criminal P. C, gives any person convicted on a trial by a Sessions Judge the right of appeal to the High Court. Section 418 provides that where the trial was by jury, the appeal shall be on a matter of law only. Prima facie therefore, there would be no appeal except on a matter of law. Learned Counsel for the accused has however argued that the offence of conspiracy with which they have been charged is an offence triable by assessors and not by a jury, and that if the trial Court has erred in the method of procedure, the accused should not thereby be deprived of their right of appeal on fact. Section 536 (1), Criminal P.C., pro-vides that if an offence triable with the aid of assessors is tried by a jury, the trial shall not on that ground only be invalid, and a Pull Bench of the Bombay High Court, presided over by Sir Lawrence Jenkins, decided in 1901 in Emperor v. Parbushankar (1901) 25 Bom 680 that so long as the trial has in fact been with the aid of a jury, no appeal lies on facts, even though the jury trial was erroneous and the trial should have been by assessors.
14. I have had the privilege of reading the judgment of my learned brother in which he takes a different view from that expressed by the Bombay Court. Were the matter res Integra, I should probably come to the same conclusion that he has formed, for it seems to me contrary to the principles, by which the Courts are guided in the trial of an accused, that they should deprive him of right to which he is entitled under the law, because of an error in procedure committed by the Judge who is in charge of the trial. The principle on which Section 418 is founded is that once the jury have come to a decision on a question of fact, that decision is final and cannot be challenged either by the Judge of first instance or by the Judges in the Court of Appeal. In a trial with assessors, the Judge is the judge of fact, though his decision is aided by the expression of opinion of the assessors, and his decision on questions of fact is liable to challenge. This is probably the reason why the reported cases have always referred to trial by jury as a privilege for the accused; and the basis of the judgment of Chandawarker J. in 25 Bom 680,2 and of other decisions which adopt the same con-elusion, is that the accused has secured, as a result of being tried by a jury when he ought to have been tried with the aid of assessors, a privilege as valuable as, if not more valuable than, the right of appeal on facts.
15. So far as I am aware, the Full Bench decision in Bombay has been followed and considered as the correct interpretation of the relevant provisions of the Criminal Procedure Code ever since 1901. My personal view is that it correctly determines the intentions of the framers of the Code, and if that be so, we must decide accordingly. The duty of this Court is to interpret the Code and not to encroach on the prerogative of the Legislature. The decision in Emperor v. Parbushankar (1901) 25 Bom 680 has, as I have said, been accepted for a great many years, and were it erroneous as to the intention of the Legislature, a very slight alteration of S.418 would have preserved for the accused any rights of which the Legislature were unwilling that he should be deprived. In these circumstances I am of opinion, in the present appeal, that the accused have no right of appeal on facts. The question however becomes academic, by reason of the view which we take on the argument for the accused that there has been in this case misdirection which would vitiate the trial as having occasioned a failure of justice.
16. It will be remembered that the charge against the accused is one of conspiracy to murder, and it is argued that the case of conspiracy must stand or fall with the case of murder, as the evidence of conspiracy really rests on proof of the murder. The learned Judge, it is said, should have pointed this out to the jury and he should have warned them that the evidence before them was merely evidence of an assault, and that that evidence was not in itself sufficient to establish the crime of murder. In charging the jury, the learned Judge has in my opinion attempted to deal with most of the points that arose fully and fairly. The prosecution had examined 75 wit-nesses, and the learned Judge, after stating the case for the prosecution, gave the jury a short summary of the evidence of each witness and dealt also with the evidence against each individual accused. He has, however, dealt with the witnesses in their numerical order, and has failed to marshal the evidence relating to each element of the charge, or to indicate to the jury how far in his opinion each element has been substantiated by the evidence before them. This would not of itself amount to misdirection, but coupled with the omissions and inaccuracies, to which I will refer shortly, we consider that there has been misdirection in this case within the meaning of Section 423, Sub-section (2), Criminal P.C.
17. Taking the various elements of the charge seriatim : First, as to conspiracy to murder, the learned Judge has mentioned certain witnesses who have given evidence of association between the accused and the deceased, and he has referred to a petition by the deceased to the S. D. O., Uluberia, on 23rd September 1935 (Ex. 5). An objection was made to the admissibility of this document, and that objection has been pressed before us. It is urged that Section 32, Evidence Act, is the only section of the Act which deals with and admits, in certain circumstances, evidence of a deceased person, and the only sub-section under which it could be admitted is subs. (1) and then only after the death of the doctor had been proved. For myself, I am by no means satisfied that the document would not be admissible under Section 32 (1), but we have no doubt that it is admissible under Section 8, Evidence Act, as evidence of the conduct of the doctor, an offence against whom was the subject of the trial, such conduct being influenced by his fear of injury. The complaint to the police is the con-duct, and the references to Section 32 in illustrations (j) and (k) to Section 8 make it clear that such conduct may be proved, whether the person whose conduct is sought to be proved is alive or dead: Emperor v. Manohan Khan (1923) 34 Bom LR 1087. The document is a complaint by the doctor to the S. D. O. of Uluberia on 23rd September 1935 (i.e. about a week before the alleged murder), stating that the petitioner seriously apprehended danger to his life, liberty and reputation at the hands of certain persons. The importance of this evidence is considerable, and there are various points in connection with it which have been stressed by the defence, but to which the learned Judge omitted to direct the attention of the jury. In fact nowhere in his charge has the learned Judge discussed the documentary evidence. He should certainly have pointed out to the jury that in Ex. 5 Khalil (accused 5) who is said to be one of the ringleaders is not mentioned act all, while Bidhu Bhusan Roy and Upendra Nath Dutt are named as the doctor's principal enemies, and a schedule contains the names of 20 men said to belong to their party. Furthermore, he should have warned them that it was an ex parte statement made by the doctor which had never been subjected to cross-examination. (His Lordship, after discussing the other elements of the charge coupled with other omissions and inaccuracies, proceeded.) The learned Judge has obviously taken considerable trouble to place all the facts before the jury fairly and adequately, but there have been omissions and there has been misdirection, and these too in regard to a vital portion of the case. He has called the attention of the jury to the fact that the witnesses were examined on several occasions during the police investigation and their evidence was extracted by ' instalments ', and he characterised this procedure as 'not healthy'. It would have been better had he pointed out to the jury the details, showing the significance of this method which was brought out by the defence in the cross-examination of the investigating officer.
18. Arguments have been addressed to us on behalf of the appellant to the effect that the conspiracy charge is a conspiracy to murder and destroy evidence, and that if the prosecution fail in establishing any particulars of the charge, the whole charge would fail.
19. The learned Judge at the trial directed the jury that they were entitled to bring in a verdict under Section 326 for grievous hurt if they were not satisfied that there was an intention to murder, and for the prosecution, reliance was placed on Sections 236 and 237, Criminal P. C, to justify such a direction. We are of opinion that the conspiracy must be established as charged and that the prosecution is not entitled to prove a different conspiracy in furtherance of a minor offence. This matter has been dealt with in detail by my learned brother and I agree with his reasoning and his conclusions. In this view it was not open to the jury on the charge as framed to bring in a verdict incorporating Section 326. We find that the evidence has not been properly placed before the jury. We have considered carefully the evidence of all the important witnesses. There is evidence of enmity against the doctor and evidence of conspiracy to assault him and to drive him out of the district, but the evidence of conspiracy to murder rests entirely on the remark said to have been overheard during the assault and attributed to Kalipada Bag, and we are of opinion, in the words of Sir Barnes Peacock in Queen v. Elahi Bux. (1866) 5 WR Cr 80 at p. 88, that:
The evidence would not on any proper view of the case support a conviction, and it would be worse than useless to send back the case for a new trial in order that a jury may have the opportunity of convicting upon such evidence on a proper 'summing up
20. See also Jamiruddin Masaalli v. Emperor (1902) 29 Cal 782 at page 791. We are fortified in this view by the consideration that the accused have been in detention for nearly two years, and through no fault of their own they have already had to undergo two trials. The result is that Appeals Nos. 162 and 189 of 1937 are also allowed, the verdict and sentences on all the appellants are set aside, and we direct that they be acquitited and released immediately.
21. I agree in the order proposed by my learned brother, but as I have reached the same conclusion from a somewhat different stand point in some respects, and specially as I have formed the opinion that the appellants here have a right of appeal on facts, it is perhaps necessary I should state my views separately. I shall take up this last point first. The objection of the appellants on this bead arises from the fact that the trial was held by a jury, and not with the aid of assessors, as it should have been under Section 269, Criminal P.C., with reference to the charge of conspiracy. As was pointed out in Jogneswar Ghosh v. Emperor : AIR1936Cal527 an offence under Ch V-A, I.P.C., which includes Section 120-B, is normally triable with the aid of assessors, and not by jury.
22. It appears that in this case the Public Prosecutor actually pointed out to the Judge at the commencement of the trial that the jurors who had been empanelled should be treated as assessors as regards the charge under Section 120-B, as required by Section 269 (3), Criminal P.C. One of the accused, since acquitted by the jury however objected, and the learned Judge thereupon decided to proceed with the trial as a trial by jury. This he did apparently in view of the decision of this Court in the recent case of Cheru Sheikh v. Emperor Reported in (1936) 40 CWN 1374 where the combined procedure of a trial by jury of some of the charges and a trial with the aid of jurors as assessors of the other charges was deprecated. This is however the procedure not merely contemplated, but required by the provisions of Section 269 (3), and in my opinion an accused may legitimately complain if this procedure is not followed. The importance of this lies in that it materially affects the right of appeal.
23. Section 410, Criminal P.C., gives a right of appeal to the High Court against a conviction on a trial held by a Sessions Judge or an Additional Sessions Judge whether the trial is held by jury or with the aid of assessors. Section 418 (1) then pro-vides that:
An appeal may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only.
24. In other words, if the trial is with the aid of assessors, the appeal is on facts as well as on law, whereas if the trial is by jury, the appeal is only on a matter of law. Sub-section (2) of Section 423 makes even clearer the limited scope of an appeal from the verdict of a jury:
(2) Nothing herein contained shall authorize the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.
25. Along with this is to be read the provision in Section 537 that no finding, sentence or order is to be reversed or altered on appeal (or revision) on account of any misdirection in any charge to the jury, unless such misdirection has in fact occasioned a failure of justice. The question is whether in a case triable not by jury, but with the aid of assessors, if the trial was in fact held by a jury, it can be said that the trial was by jury within the meaning of Section 418 (1). The appellants' contention is that these words must refer to a trial by jury had in conformity with the provisions of the Code. It is argued that the right of appeal of an accused in a criminal trial is a valuable right, and when such a right is expressly conferred by statute, as by Section 410, it should not be restricted in any way unless there are clear words of restriction in the statute, and it is further urged that in construing such words of restriction, the construction most favourable to the accused should be adopted. The appellants accordingly claim a right of appeal on facts as well as on law in this case. It is necessary to refer in this connexion to Section 536, Criminal P. C, on which strong reliance is placed by the Crown. The section is as follows:
(1) If an offence triable with the aid of assessors is tried by a jury, the trial shall not on that ground only be invalid. (2) If an offence triable by a jury is tried with the aid of assessors, the trial shall not on that ground only be invalid, unless the objection is taken before the Court records its finding.
26. Referring to this section, the appellants maintain that the effect of it is merely to save the trial from being invalid, but that this means that it becomes valid as a trial by jury or as a trial with the aid of assessors according as the trial was required to be the one or the other under the provisions of the Code. Section 536, it is therefore contended, would make the trial in the present case a valid trial with the aid of assessors, notwithstanding that in point of fact it was held by a jury. By construction of law it would substitute what should have been the correct mode of trial for the procedure actually followed. In support of their contention, the appellants relied on a number of cases : Queen v. Norkoo (1972) 18 WR Cr 59; Queen v. Doorga Churn Shome (1875) 24 WB Cr 30; Empress v. Mohim Chunder Rai (1877) 3 Cal 765 (per Maclean J,; Mitter J, dubitante) and Pattikandan Ummara v. Emperor (1903) 26 Mad 243 (per Benson J.). In answer, the learned Deputy Legal Remembrancer relied on the following among other cases: Emperor v. Parbushankar (1901) 25 Bom 680 a Full Bench decision; Emperor v. Mavsang Bechar (1909) 33 Bom 423; Surja Kurmi v. Queen-Empress (1898) 25 Cal 555 and an un-reported decision of Cunliffe and Henderson JJ., in Ekabbar Mandal v. Emperor, since reported in AIR 1937 Cal 756 dated 12th February 1937. The oases undoubtedly disclose a divergence of judicial opinion on the point, but it is only in the Bombay Full Bench case, Emperor v. Parbushankar (1901) 25 Bom 680 that the question is fully discussed. So far as the Calcutta High Court is concerned, the decisions are all the other way, except the recent decision in the unreported cases in Ekabbar Mandal v. Emperor, since reported in AIR 1937 Cal 756 but, as will be seen from the judgment of Henderson J. in this case, the learned Judge was evidently under a misapprehension, as he seemed to think that it was always open to the accused to take the case out of the mischief of Section 536 by raising an objection, overlooking the fact that the section itself makes a distinction between a case coming under Sub-section (1) and a case coming under Sub-section (2) thereof. Calcutta cases like Surja Kurmi v. Queen-Empress (1898) 25 Cal 555 or like Cheru Sheikh v. Emperor Reported in (1936) 40 CWN 1374 as I shall show later, do not touch the point.
27. It may be useful to refer to the previous statutory provisions corresponding to the present Section 269(3). Act 10 of 1872 contained' no provision as to the procedure to be followed when the accused was charged at the same trial with several offences of which some were and some were not triable by jury, but there was provision in Section 233 that if an offence triable with assessors is tried by a jury, the trial shall not on that ground merely be invalid. In this state of the law, this Court held In re Bhootnath Dey (1879) 4 CLR 405 that in such a case the whole case must be taken as having been tried by a jury. The Sessions Judge there had at first taken the verdict of the jury on all the charges which was one of acquittal, and as he did not agree with the verdict, decided to refer the case to the High Court under Section 263. Later, his attention being drawn to the case in Empress v. Mohim Chunder Rai (1877) 3 Cal 765 he recalled his order, proceeded to treat the trial, so far as the non-jury charges were concerned, as a trial held with the aid of assessors and recorded a conviction in respect thereof. This Court (Mitter and Prinsep JJ.) held that the Sessions Judge was not entitled to do so. Mitter J. pointed out that under Section 233 the Sessions Judge should have treated the trial as valid, meaning thereby valid as a trial by jury, and recorded a final order under Section 263. Prinsep J. added that in order that the case might be treated as a trial held with the aid of assessors, it was essential that the Judge should take the opinions of the individual assessors and then take such opinions into consideration before passing judgment. This decision was subsequently am bodied in Section 269 of Act 10 of 1882, which expressly enacted as follows:
When the accused is charged at the same trial with several offences of which some are and some are not triable by jury, he shall be tried by jury for all such offences.
28. This continued to be the law until 1886, when Section 269 was amended by Section 9 of Act 10 of 1886, whereby the following was substituted for the above provision:
When the accused is charged at the same trial with several offences of which some are and some are not triable by jury, he shall be tried by jury for such of those offences as are triable by jury, and by the Court of Session with the aid of jurors as assessors, for such of them as are not triable by jury.
29. This was continued as Section 269 (3) in Act 5 of 1898, and is the law at present. On the words of Section 536 it seems to be perfectly clear that where an offence, though triable with the aid of assessors, is in fact tried by a jury, the irregularity does not invalidate the trial, but the question is whether and how far it attracts the con-sequences of Section 418 (1) and affects the right of appeal? The Full Bench of the Bombay High Court held that the words in Section 418 (1) are themselves the dearest answer to the question; it was said that the words relate to what actually occurred, not to what should have occurred. Jen. kins C. J. said that the words 'where the trial was by jury' mean 'where the trial in fact was by jury', not 'where the trial should have been by jury'. The learned Chief Justice pointed out that an adoption of the rival view would lead to the result that
a reversal of the conditions would leave an accused, who was wrongly tried with the aid of assessors, without any right of appeal,
by which he doubtless meant appeal on facts. Candy J. pointed out that trial by jury is regarded as a 'privilege', carrying with it certain 'liabilities'. If an offence triable by jury is tried with the aid of assessors, then, provided objection is taken before the Court records its finding, the trial will be invalid, but the converse is different. If the accused obtains the privilege to which strictly speaking he is not entitled, it is not presumed that he will take any objection. He has the chance of a verdict in his favour, a verdict which can only be upset under exceptional circumstances. If the verdict is against him, he cannot turn round and claim an appeal on matters of fact. Fulton J. urging the same considerations adds that it may seem hard that a prisoner should by reason of an irregularity in the mode of trial in the Court of Session be deprived of an appeal to the High Court on facts, but expresses the view that the grievance is more apparent than real, as under Section 439 the High Court has the widest powers of revision, and if it finds that owing to an irregularity in the Court below the prisoner is in danger of being wronged, it will exercise those powers even to the extent of reversing the verdict, a point on which it appears Candy J. expressly reserved his opinion. Crowe J. indicated his opinion that by virtue of Section 536 the trial should be held to be a valid trial by jury. Chandavarkar J. was inclined to think that the wording of Section 418 (1) as well as of Section 536 was capable of more than one meaning, equally favouring and not favouring a right of appeal on facts, and also thought that where the language used was capable of more than one construction, he should lean in favour of that which was beneficial to the accused. But he held that the whole scheme of the Code of Criminal Procedure was to treat trial by jury as a privilege, as valuable as, if not more valuable than, the right of appeal on facts. And he derived support for this view from the distinction expressly recognized in Section 536 between a case where an accused who ought to have been tried with the aid of assessors is tried by a jury, and a case where an accused who ought to have been tried by a jury is tried with the aid of assessors. In the former case, the Legislature says that the trial shall not be invalid, whereas in the latter, the trial shall not be invalid unless objection is taken to the trial before the Court records its finding.
30. In support of the contrary view, the reason given in the case in 3 Cal 76510 by Maclean J. was that an error of procedure not affecting the merits of the case ought not to affect the prisoner's right of appeal. In the earlier case in 18 W R Cr 59,8 where a trial was held with a jury instead of, as it ought to have been, with assessors, the High Court held that the accused had not been prejudiced, because it could dispose of their appeal on evidence, and need not restrict itself, as it would have done, had the trial been held with a jury, to questions of law; and in the other case in 24 W R Cr 30,9 the actual trial by a jury was held not on that ground to be invalid, and this Court treated the Judge's charge to the jury as his judgment in the case and heard the appeal on facts. In the Madras case in 26 Mad 243,11 the Sessions Judge treated the verdict of the jury on the non-jury charges as the opinions of assessors, and in that view, Benson J following the Calcutta case in 3 Cal 76510 held that the accused was entitled to an appeal on facts in respect of the conviction on that charge, The other learned Judge in that case, Bhashyam Ayyangar J. was however of a contrary opinion, and observed as follows:
Reading Section 418 with Section 536, it seems So me that the question as to whether an appeal will lie on a matter of fact as well as a matter of law, or only on a matter of law, depends upon the question as to whether the trial was in fact with the aid of assessors or was by jury, and not upon the question as to whether the offence of which the appellant has been convicted was of a class which ought to have been tried with the aid of assessors, or one of a class which ought to have been tried by a jury; so far as trial by jury is concerned, the trial will not be invalid, even if the accused is charged expressly with an offence triable with the aid of assessors and even if the objection to trial by jury was taken by the accused, but was overruled by the Sessions Judge on the erroneous ground that it was triable by jury. In such a case the accused if convicted cannot claim the right of appeal on matters of fact.
31. The question raised is obviously one of considerable importance as affecting the right of appeal of an accused person in a criminal trial, but its solution has by no means been rendered easier by some recent decisions such as Cri. App No. 923 of 1936 and Ekabbar Mandal v. Emperor since reported in : AIR1937Cal756 or Cheru Sheikh v, Emperor, Reported in (1936) 40 CWN 1374 already referred to, in which the mode of mixed trial authorized by S 269 (3), Criminal P.C., has been condemned, The effect of such decisions is, as it has in fact been in the present case, to make the Sessions Judge deliberately disregard the express provisions of the statute and impose on the accused a trial by jury in respect of offences for which they are not liable to be tried by a jury, nor desire to be so tried; and it undoubtedly becomes a serious matter for such accused if by reason of such procedure they are sought to be deprived of their right of appeal to the High Court on matters of fact. Speaking for myself, I am not prepared to assent to the view that trial by jury is necessarily and in all circumstances a ' privilege' which the accused is bound to accept as such, or which must be presumed as a matter of law to be so 'beneficial' as may be thrust on him. In my opinion, if it is a question of choice, it should be for the accused and the accused alone to make the election. It may be that it was the policy of the Legislature to treat trial by jury as a privilege : I will not say this was its intention, for the intention has to be gathered from the Code itself, and as I shall show, an examination of the Code does not bear out such intention. ' It is never very safe ground', as was remarked by Lord Selborne L, C. in Municipal Building Society v. Kent (1884) 9 AC 260 at p. 273
in the construction of a statute, to give weight to views of its policy, which are themselves open to doubt and controversy.
32. As was also observed by Lord Watson in Salomon v. Salomon & Co. (1897) AC 22 at p. 38:
Intention of the Legislature is a common but very slippery phrase, which popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.
33. It is after all an accident depending on the discretion of the Local Government under Section 269 whether any offence or any particular class of offences shall be triable by jury, and that again depends on whether the trial is actually held in a district in which a notification under that section is in force. Then again it is to be seen that the High Court may by an order under Section 526 transfer a Sessions case from a jury district to a non-jury district, or under the powers of Section 423 (2) it may direct a ease originally heard by a jury to be re-tried before a Court without a jury, though, no doubt, as pointed out by the Judicial Committee in Hari v Emperor AIR 3935 P C 122 such an order ought not to be made unless in exceptional circumstances. If jury trial was intended to be a 'privilege', would it not have vested on securer foundations?
34. As was pointed out by Chandavarkar J. in Emperor v. Mavsang Bechar (1909) 33 Bom 423 the Code of Criminal Procedure makes no distinction as to the procedure at the trial between a trial by jury and a trial with the aid of assessors, except as to the summing up and as to the manner of taking the verdict in the one case and the opinions in the other. In a jury trial, the Court shall sum up the case, whereas in an assessor-trial it may do so. In the former, again, the foreman of the jury informs the Judge what is their verdict or what is the verdict of a majority, while in the latter, the Court requires each assessor to state his opinion individually. The other differences between the two classes of oases relate to a stage antecedent to the commencement of the trial. To begin with, different lists are maintained of persons who may be summoned as jurors and of persons who may be summoned as assessors. Then there is provision for a special jury in certain cases, but none for special assessors. Then, again, the choice of jurors is by lot, but the choice of assessors is entirely with the Judge, and there is provision for objecting to the selection of a juror, but none for objecting to the selection of an assessor.
35. So far as the mode of selection is concerned, I do not think it can be said, specially having regard to the actual practice of the Courts, that there is much to turn the scales necessarily in favour of a trial by jury; except as regards special jurors, jurors and assessors are recruited from the same class of persons. In a case coming under Section 269 (3), which contemplates the very same persons functioning as jurors for one purpose and as assessors for another, no question of any comparative superiority in personnel can possibly arise. As to summing up, here again the practice is the same, and must be the same in a mixed trial under Section 269 (3). Then, as to the manner of taking the verdict or the opinions, I fail to see how the fact that jurors-give their opinion or the opinion of the majority collectively, and assessors give their opinions individually makes much of a difference in favour of trial by jury. If I were trying a case with the help of five persons, sitting as jurors or as assessors, what difference would it make to me if I knew that A, B, C, D or E held a particular view, or I knew that they all or a majority of them jointly held that view? The requirement that assessors must state their views separately is intended as a safeguard for the benefit of the accused in order that the Appellate Court may be in a position to judge how far the trial Court was justified in acting in conformity with or contrary to such opinions. If therefore in a case triable with the aid of assessors, but actually tried by a jury, the accused are willing that the verdict of the jury should be treated as the opinions of assessors, I do not think anybody else has a right to complain. In some of the reported decisions such as the Bombay Full Bench case, Emperor v. Parbushankar (1901) 25 Bom 680 and an Allahabad case, Emperor v. Dakbani : AIR1938All128 one reason advanced for not treating a de facto jury trial as a de jure trial with assessors is that by reason of the form in which the verdict is taken it becomes impossible to regard it as the opinions of assessors. Speaking for myself, I am not at all impressed by this argument : it attaches too much importance to form rather than to substance. If one might put it in a non-forensic way, it is straining at a gnat, while swallowing a camel. Whether it is a trial by jury or a trial with the aid of assessors, the Judge may always ask such questions as are necessary to ascertain what the verdict is or what the opinions are : so there need be no difficulty from the mere form in which the verdict or the opinions may be given.
36. What would make a difference of real consequence would undoubtedly be the degree of weight or finality which the law attributes to the verdict of the jury on the one hand and to the opinions of assessors on the other. This is really the important point which has to be considered with reference to the various provisions in the Code. Section 309 (2) expressly says that in giving judgment the Judge shall not be bound to conform to the opinions of the assessors : in other words, in an assessor-trial, the decision of the Judge prevails, and not the opinions of the assessors. Is the position materially different so far as the verdict of a jury is concerned in a Sessions trial in the districts?
37. The question cannot arise in a trial before a High Court, because all trials before a High Court shall be by jury, and in such a case Section 305 makes the verdict of the jury paramount. If the verdict is unanimous, the Judge has no option but to give judgment accordingly : if on the other hand the verdict is divided, and there is not a majority of at least six to three with which the Judge agrees, he shall be bound to discharge the jury. In other words, an accused may not be convicted at all except in accordance with the verdict of the jury, or the verdict of a majority of the jury in the proportion of not less than six to three.
38. Such however is not the case as regards a trial held in a district. Here the Judge may or may not accept the verdict. If he accepts it, he shall no doubt give judgment accordingly (Section 306), but if he does not, his clear course is to refer the case to the High Court, and upon such reference, the whole case is open before the High Court both on fact and on law (8, 307). This means that the verdict of the jury prevails only when the Judge accepts it, but equally may it be said in an assessor-trial that the opinions of the assessors prevail when the Judge accepts the same. Where the Judge does not accept the verdict, the verdict practically goes by the board, and so do the opinions of assessors, when they are not accepted by the Judge: the only difference is that in the former case the final judgment is pronounced by the High Court upon a reference under Section 307 and in the latter upon an appeal under Section 410, but in either case upon a consideration of the entire evidence giving due weight no doubt to the opinions of the Judge as well as those of the jury or of the assessors as the case may be. There is express authority which in fact goes so far as to hold that on a reference under Section 307, the whole case is open before the High Court which may convict the accused even on a charge on which the Judge may have agreed with the finding of not guilty by the jury : Emperor v. Dwarikanath Goswami : AIR1933Cal47 .
39. The force of the above argument is not weakened by pointing to certain limiting words in Section 307 which suggest that it is not in every case of disagreement that a Judge must make a reference to the High Court, but only where he is also 'clearly of opinion that it is necessary for the ends of justice' to do so. This only means, as was pointed out in Ebrahim Molla v. Emperor : AIR1929Cal415 and Afsar Shaikh v. Emperor : AIR1937Cal540 that in a jury trial a Sessions Judge has either of two courses open to him, either to accept the verdict and give judgment accordingly, or to submit the case to the High Court, disagreeing with the verdict. If he disagrees he may still accept the verdict and act under Section 306, so long as he 'does not think it necessary to express disagreement': see also Emperor v. Manjia : AIR1937All195 In such a case, if the verdict is one of guilty, trial by jury might be a doubtful 'privilege'. The present case itself affords an apt illustration. The charge in this case, as already pointed out, was one of a conspiracy, that is, a single conspiracy to murder and remove evidence of the murder (Ss. 302 and 201, Penal Code). The prosecution sought to prove the murder as having been committed in pursuance of the conspiracy. Discussing the evidence, this is how the learned Judge expressed his own opinion in his charge to the jury:
Having regard to the Chemical Examinee's report after examination of Amulya Doctor's shirt and frock, I think one cannot reasonably come to the Conclusion that the wounds cutting away and severing the different parts of his body were ante-mortem. If so, the next reasonable conclusion should be that the intention of the culprits was not murder, but giving a good thrashing to the doctor and the action contemplated was over-done and death was caused, and that after that the dead body was disposed of as a result of cool deliberation for causing disappearance of all evidence regarding the crime,
40. There can be no doubt that this was a clear finding against conspiracy to murder, and also that the offence under Section 201 (removal of evidence of murder) was the subject matter of a different conspiracy. Whether or not, on such a finding, the offence charged could be reduced to one under Section 120-B read with Section 325 or Section 326 (instead of Section 302) or/and Section 201, as the learned Judge seemed to think, is another matter, but certainly no conviction could be had in respect of the offence as charged. The jury however returned a verdict of guilty on the original charge, and the learned Judge, of a different opinion as he was, still precluded himself by his own action from giving effect to it. Had the trial been held as an assessor-trial, he would doubtless have been less fettered. In a jury trial, if the verdict is one of guilty, and the Judge is of a different opinion, the Judge cannot in fact act on his own opinion and acquit the prisoner straightway: he can only make a reference to the High Court thereby exposing the prisoner to the trouble and expanse of another hearing. If the trial was hold with the aid of assessors, he could acquit the prisoner forthwith, the opinions of assessors notwithstanding. On an appeal against acquittal by the Local Government under Section 417, an accused would probably be in a better position if the trial was by jury than if it was with the aid of assessors. In a jury trial, there could be an acquittal only where the Judge agreed with the jury, and the appeal would be only on questions of law, whereas in an assessortrial an acquittal could follow, whether on agreement with the assessors or otherwise, and the appeal would be on both fact and law. Ordinarily, however, where the trial ends in the Sessions Court in an acquittal, there can be no question of a trial by jury being a 'privilege'. 'Where, on the other hand, it ends in a conviction, trial by jury would not only not be a privilege, but a source of prejudice, it the accused was thereby to be deprived of the right of appeal on facts. If the trial is by a jury and the verdict is one of not guilty, and the Judge makes a reference, the accused, as already explained, can be in no worse position than if the trial was with the aid of assessors. It is only therefore where the accused has a verdict of acquittal in his favour that it can be said, in the words of Candy J. in the Bombay Full Bench case, that the ver-diet of the jury is one 'which can only be upset under exceptional circumstances'. An appeal against an order of acquittal, however, is itself an exception rather than the rule.
41. Taking the entire scheme of the Code into consideration, it seems to me to be very doubtful indeed how far a trial by jury in a mofussil district can in all circumstances be regarded as a 'privilege', as the learned Judges of the Bombay Full Bench appear to think. A jury trial would be a privilege only if and to the extent it could be regarded as sacrosanct, not where no finality attaches to it as in a Sessions trial held in a High Court, Any sentimental advantage that may be supposed to be inherent in such a mode of trial on notions derived from British criminal jurisprudence would to my mind be far outweighed by the 'liabilities' incident thereto, in so far as it tended to affect the right of appeal. Where, therefore, through no fault of his a trial by jury is imposed on an accused person in disregard of the express provisions of the statute which entitle him as of right to a trial with the aid of assessors, it would in my opinion be a manifest injustice to deprive him of a right of appeal which he would otherwise have had under the law. Such a result should be avoided by all means, unless of course this was necessitated by the constraining language of the Code. The material provisions in this respect, as already stated, are those embodied in Section 418 (1) read with Section 536, Criminal P.C.
42. With due deference to the high authority of Jenkins C. J., I am unable to agree with him that the words 'where the trial was by jury' in Section 418 (1) are so clear as to admit of one meaning only and that they must mean 'where the trial in fact was by jury'. In my opinion, these words are equally capable of another construction, meaning 'where the trial was lawfully by jury'. There is no reason to fear that the adoption of this meaning would produce the consequences apprehended by the learned Chief Justice that an accused who was wrongly tried with the aid of assessors would be thereby left without a right of appeal. The right of appeal is given by Section 410, and whatever be the meaning ascribed to the material words in Section 418 (1), that right will remain un-affected. The appeal, I imagine, would also be an appeal on both facts and law, because it could not be predicated of such a de facto trial with assessors that 'the trial was lawfully by jury'. It is further worthy of note that in such a case the accused would always have it within his power to render the trial invalid beyond cure by taking an objection at any time before the Court recorded its finding : see Sub-section (2) of Section 536. The distinction drawn in Section 536 between the two kinds of cases referred to in the two sub-sections thereof would from this point of view fully meet the objection raised by the learned Chief Justice.
43. Suppose in construing the meaning of the words 'where the trial was by jury' in Section 418 (1) it is relevant to consider whether trial by jury was intended by the framers of the Code to be a 'privilege', I venture to think it would be wrong to rely on the distinction between Sub-section (1) and sub-s, (2) of Section 536 for the purpose of drawing any such inference. It would indicate a privilege only if it could be shown that a de facto trial by jury, where de jure the trial should have been with the aid of assessors, would not impair the right of appeal on facts. But that would be assuming the very question which has to be answered. Section 536, as I understand it, merely cures an admitted irregularity in procedure, but even be it says nothing as to whether a trial which should have been a trial with the aid of assessors but was in fact held by a jury should be deemed to have been held as a valid trial by jury, or conversely whether a trial which should have been by jury but was actually held with the aid of assessors should be deemed a valid trial with assessors. In any case Section 536 does not and cannot affect the right of appeal which is governed by Section 418 (1) read with Section 410.
44. In the application of Section 536 as it is, there is a further point to be noticed, namely the use of the word 'only' to which little or no attention seems to have been paid in the reported cases. All that the section says is that the trial shall not 'on that ground only' be invalid, that is, it shall not be invalid merely on the ground of the irregularity in question. In a case under Sub-section (2), if an objection is taken, it is expressly provided that this will at once take the case out of the protection of the sub-section. In a case under Sub-section (1), it is not said that any objection will have any such effect, but it may quite be that apart from the irregularity, there is prejudice caused to the accused by reason of such irregularity. It will then be a case not of mere irregularity, but of irregularity and something, more, and it is difficult to see how the saving provisions of Sub-section (1) can then at all apply. Where the trial ends in an acquittal, and there is or is not an appeal by the Local Government, there will be obviously no prejudice, and the trial may stand. But where it ends in a conviction, and the accused appeals, and the accused is sought to be shut out of an appeal on facts, he will certainly have been prejudiced, and on a strict reading of Section 536 (1) the trial will be incurably bad. To render the trial valid in such a case the right of appeal on facts would indeed have to be conceded. Prejudice may arise also in another way, as it has in this case, where the Judge takes a view more favourable to the accused than the jury but is unable to give effect to it because the trial is a trial by jury.
45. In interpreting Section 418 (1) therefore, which is indeed the governing section so far as the right of appeal is concerned, I would adopt the principle of construction which was indicated by Chandavarkar J. himself, as also by some of the other learned Judges in the Bombay Full Bench case, but for a different result I would give the material words in this section, 'where the trial was by jury', the meaning I have already indicated, as in the view I hold, that is the meaning more favourable to the accused and more in consonance with justice. Where on the words of an enactment two constructions are open, it need hardly be pointed out that the Court may adopt the more reasonable or beneficial of the two, or the one which is the more likely to avoid a manifest injustice: see Beal's Cardinal Rules of Legal Interpretation (Edn. 3) pages 370-371, 394.395 and 399 400. As I have attempted to show, such a construction would be not only not inconsistent with the scheme of the Code, but in entire harmony with its provisions. In the name of conferring a privilege, it would not be imposing a burden,
46. Cases, like those of which 25 Cal 55513 is a type, are of no assistance to Mr. Bhattacharyya: they are not in point, as the question of the scope of the right of appeal is not directly raised therein. The point decided in this particular case was the same as had been previously decided in & C L R 40515 already referred to. The accused was tried by a jury for an offence which was triable with the aid of assessors; the jury found him not guilty; the Sessions Judge did not agree, and was about to refer the case to the High Court under Section 307 of Act 10 of 1882 (similar to the present Section 307), when it was brought to his notice that the case was triable with assessors, and not by jury. The course which he then adopted was to treat the verdict of the jury as the opinions of assessors, and pass judgment convicting the accused. On appeal, this Court (Hill & Stevens JJ.) held this was wrong: the case was 'tried by a jury' within the meaning of Section 536, and the Judge was therefore bound either to accept the ver-diet and give judgment accordingly or to make a reference to the High Court. It will be seen that the question as to the meaning of the relevant words in Section 418 (1) was not considered at all. All that was decided was that the case was 'tried by a jury' within the meaning of Section 536 : but ex hypothesi, these words in this section are descriptive of what has actually occurred, and this was never questioned. The real point in the case was not whether the case was 'tried by a jury' within the meaning of Section 536, but whether it was such a case within the meaning of the sections in Ch. 23 of the Code dealing with jury trials, particularly Sections 306 and 307. Section 536 which finds a place in the chapter on irregularities can hardly throw any light on the interpretation of these other sections or of 8 418(1). Apart from the citation of the earlier case in 4 C L R 40515, the learned Judges gave no reasons in support of their decision.
47. Decisions like that of Cheru Sheikh v. Emperor cannot in my opinion be invoked to force a jury trial in respect of non-jury charges, and then make that a ground for depriving the accused of an appeal on facts. What the learned Judges in these oases have done is to recommend the procedure which was indicated in 4 C L R 405 and which, as already stated, was subsequently incorporated in Section 269 of Act 10 of 1882. But this was deliberately altered by the Legislature in 1886 to what is now Section 269 (3). So long as this provision stands, I venture to suggest, it is not open to anyone to encourage or approve a departure from this procedure. In any case, if it is sought to rely on these oases as authority for taking away a right of appeal on facts, I must respectfully demur. As regards the fear expressed in some of the oases that the adoption of the mixed procedure referred to in Section 269 (3) may lead to anomalous results, I may state that whether or not, as Fulton J. seemed to think in the Bombay Full Bench case, Section 439 of the Code may be held to provide an effective means whereby such anomalies may be corrected, such considerations ought not to override the clear language of the statute. In any case, there is no reason why the anomaly should be sought to be remedied by following a procedure which might restrict the right of appeal rather than by adopting the other mode of trial which would leave the right full and unimpaired both as regards fact and law. I have no hesitation in holding that in the present case the learned Judge was wholly wrong in trying the conspiracy charge by a jury. This was in fact the only charge against seven out of the nine accused, including the four appellants who were convicted of this offence : only the remaining two were also charged in addition with a minor substantive offence each, one under Section 204 and the other under Section 364, I.P.C. Strictly speaking, so far as these seven persons are concerned, there could be no question of a mixed trial under Section 269 (3) in their case, as Section 269 (3) ex vi termini deals with a case where the same accused are charged with several offences of which some are and some are not triable by jury. An assessor trial was thus in fact the only form of trial to which they were amenable under the law. It is true, as already pointed out, that one of them (not before us) objected to an assessor trial, but the objection was illegal: in any case the others could not be bound by it. The position therefore is that a procedure was adopted for their trial; not through inadvertence but knowingly in disregard of the statutory provisions, which they bad neither asked for nor assented to, and I repeat it would be a manifest injustice to make this a ground for depriving them of a right of appeal on facts.
48. In the result, I have therefore reached the conclusion that the appellants here have not lost that right. If a contrary view were maintained, the irregularity itself, as I have attempted to show, would be incurable under Section 536 (1). Section 536 (1) failing, it would obviously be impossible to call into aid the saving provisions of Section 537, as the very loss of the right of appeal on facts would amount to a failure of justice prejudicing the accused, and as it happened, the objection had been taken (it may be, by the Crown) at the earliest stage. In this view of the matter, it would not be necessary to examine the Judge's charge to the jury to see if it was vitiated by any misdirection. Suffice it to Bay that on the Judge's own view of the facts, as already indicated, the charge of conspiracy as laid could not be sustained, This brings me to the question as to whether in that case the charge was bound to fail altogether, or whether as the learned Judge seemed to indicate, a different conspiracy or any minor substantive offence could be proved. This is what the learned Judge said in one part of his summing up:
If you come to be of this view of the case, then you should consider whether the intention of the culprits was to murder the doctor, or was only to give him a sound thrashing. If you entertain the second view to be more probable [and this was the view of the Judge], then the rigor of the offence will be minimised and the culprits whoever they may be, will come under Section 120-B-326/201, I.P.C....This is a minor charge covered by the principal charge framed in this case, viz. under Section 120-B-302-201, I.P.C. I tell you again that if you are of opinion that the intention of the culprits was not murder, but to cause grievous hurt to Atnulya doctor, then you should find the accused whom you may hold to be really guilty, to be guilty under Section 120-B-326/ 201, I.P.C., so far as the common and the primary charge is concerned.
49. In my view the learned Judge is wrong. Seeing that one single conspiracy was charged, a conspiracy to commit both an offence under Section 302 and an offence under Section 201-not a combination of two conspiracies, one in respect of each offence-I think the prosecution must stand or fall according as they can or cannot establish the conspiracy as charged. A conspiracy to commit a particular offence or offences having been charged, it would not be open to the prosecution to prove a different conspiracy. Nor could the prosecution, conspiracy failing, ask for a conviction for lone or more of the offences alleged to constitute the object of the conspiracy, or for any minor offence. Mr. Bhattacharyya on behalf of the Grown seeks to repel this conclusion by referring to Section 237, Criminal P. C, but this section hardly applies. It provides as follows:
If in the case mentioned in Section 236 the accused is charged with one offence and it appears in evidence that he committed a different offence for which be might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
50. The governing words of the section are those with which it opens. It is only in a case coming under Section 236 that Section 237 applies. An accused may be convicted under Section 237 only of such an offence as he might have been charged with under Section 236. Section 236 provides as follows:
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed come one of the said offences.
51. I am not at all satisfied the present case can be brought within this section. I do not think that upon the facts which the prosecution set out to prove in this case, there could be any doubt as to whether the conspiracy was one to commit both the offences under Sections 302 and 201, or one to commit either the one or the other of them, or one to commit none of these offences, but a different offence or offences, say, under Section 325 or Section 326. Nor could it be said that it was doubtful whether the facts would make out a conspiracy at all or some other substantive offence either under Section 302 or under Section 325 or Section 326. The doubt referred to in Section 236 is merely as to the particular sections of the penal statute applicable to the facts, not a doubt as to the facts which can be proved. It is sufficient on this point to refer to the decisions in Meher Sheik v. Emperor AIR 1931 Cal 4l4 and Istahar Khondkar v. Emperor : AIR1936Cal796 Reading the two sections together, it is not difficult to understand their true scope and object. As the words clearly indicate, these sections contemplate cases where at the commencement of the trial there is uncertainty whether the facts which the prosecution expect or undertake to prove, if proved, will constitute offence A or B or 0 and the uncertainty is resolved at the end of the trial, showing which particular offence out of these was actually committed. In such a case, it is provided that the accused may be charged with any one or more of such offences, but may be finally convicted of one other or others of them though not actually charged. The uncertainty must necessarily be an uncertain by arising out of a postulated set of acts, not an uncertainty regarding the facts which the prosecution may be ultimately able to establish. As I understand it, Section 237 does not deal with a case where the evidence falls short of proving the offence which the prosecution had set out to prove; that would be governed by Section 238 if it could be made to apply. The present case could come only under Sub-section (2) of Section 238 if at all. This sub-section is in these terms:
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it.
52. The words 'minor offence' have not been defined in the Code and the reported decisions do not lay down a uniform test. Where a conspiracy with two different objects is alleged, it is by no means certain that a conspiracy with only one of these objects will be a 'minor offence'; each would be a distinct conspiracy by itself involving a distinct agreement as the gist of the offence and not related to the other as principal or subsidiary to it. Nor can it be said that where an offence is alleged to constitute the object of a conspiracy as charged, a conspiracy to commit a minor offence will be a minor offence within the meaning of this section. Much less can it be contended that an offence (or an offence minor to it) alleged to constitute the object of a conspiracy is a minor offence to the offence of conspiracy. It is not without reason therefore that Mr. Bhattacharyya himself refrained from an attempt to bring the case under Section 238 (2).
53. I cannot help remarking that where proof of the conspiracy is sought to be rested on proof of participation in an overt act which itself amounts to an offence, the proper course is to put the accused on trial for that offence : see Kalidas Babu v. Emperor (1915) 83 IC 513 It is not right in such a case to charge conspiracy on the off-chance of being able to secure a conviction for the overt act. That would lead to a misuse of the provisions of Section 120-B, I.P.C., which the Courts have always deprecated. It would in fact offend against what has been laid down as a well-settled rule in many oases that when evidence at the disposal of the prosecution is insufficient to secure a conviction for the crime committed, it is inexpedient, even though it may be lawful, to prosecute the accused for a conspiracy the proof whereof really rests on the establishment of the very crime: Reg. v. Boulton (1871) 12 Cox CC 87 at p. 92; Emperor v. Lalit Mohan (1911) 38 Cal 559 at pp. 579-580 and Amrita Lal Hazra v. Emperor AIR 1916 Cal 188 at p. 1017.
54. In this case the overt acts constituting the main offences which were alleged to be the object of the conspiracy were mentioned in the charge but not as part of the offence charged against the accused. This was done as the learned Deputy Legal Remambraneer pointed out only in view of the provisions regarding punishment. Section 120-B, I. P. C, provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, transportation or rigorous imprisonment for a term of two years or upwards shall, where no express provision is made in the Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. Section 109 provides for punishment in oases where the act abetted is committed in consequence of the abetment and says that the punishment shall be the same as for the offence itself. Where however the offence abetted is not committed, the punishment is regulated by Section 115 which provides mere imprisonment extending to seven years, or if any act is done causing hurt to any person to fourteen years with or without fine. The prosecution here ask for punishment under Section 109 and that is why the overt acts were mentioned, but the charge simply stated that the overt acts were committed by members of the conspiracy, not that they were committed by the persons charged.
55. There is authority in English criminal law in support of the view that the object of the conspiracy must be proved as laid:
See Rosoee's Criminal Evidence, Edn. 15, p. 539. As Lord Ellenborough said: 'where a conspiracy is charged, it must be charged truly': Rex v. Pollman (1809) 2 damp 230 at p. 233. Reference may also be made in this connexion to the instructive case in O'Connell v. Rex (1844) 11 C & F 155 which shows that where a particular conspiracy is charged in the indictment, a different conspiracy cannot be found (cited in Emperor v. Lalit Mohan (1911) 38 Cal 559 at pp. 601, 602). There can be no doubt that the prosecution in the present case relied strongly on the evidence of the alleged murder and of the disposal of the dead body after murder, in support of the charge of conspiracy, but I may state that that evidence wholly fails of its purpose. The evidence of conspiracy was in fact not put before the jury as a comprehensive whole, as it should have been. A few general observations would not perhaps be out of place here regarding the way in which the learned Judge dealt with this part of the case.
56. The learned Judge, as my learned brother has pointed out, evidently took great pains in the matter of the charge to the jury, but it is a pity that in summing up the case he did not take up the different issues separately, calling attention to the pros and cons of the whole evidence bearing on each point. Instead he gave a bare summary of the oral evidence, witness by witness and then dealing with the case of each individual accused, stated seriatim the evidence of different prosecution witnesses against him. This can never be a very satisfactory way of dealing with a case, much less a case of such magnitude, where, as the learned Judge himself told the jury, the trial had been 'a long protracted one' and the oral evidence alone had 'assumed rather a gigantic shape'. A cataloguing of the witnesses may be useful in a way, but it can never be a substitute for that marshalling of the evidence, point by point, which is so necessary for presenting to the jury a complete picture with all its lights and its shades : see Enayet Katim v. Emperor : AIR1934Cal847 .
57. The learned Deputy Legal Remembrancer laid the evidence of conspiracy very clearly before us, and as my learned brother has already referred to it in his judgment, it is not necessary to deal with it at any length. It amounts to this: first, evidence of association and of meetings in certain dispensaries, showing a combination to turn the doctor out of the village. This was up to the month of Bhadra (i.e. about the middle of September.) In that month there was evidence that some persons alleged to be in the conspiracy were trying to procure goondas to 'teach the doctor a lesson'. Then there was evidence of the meeting held on 15th September 1935 in the local school premises. Then there was the petition which the deceased is said to have made to the S.D.O., Uluberia, on 23rd September (Ex. 5), a document which the defence objected to as inadmissible but which I agree with my learned brother is relevant under Expl. 1 of Section 8, if not under Section 32 (1), Evidence Act. Then there was evidence of an assault on the doctor on the evening of 29th September from when he was missed. Finally there was the evidence of the finds of the dismembered parts of a body hidden away in different parts of Harish-pore field and of the bicycle and of some articles of personal wear, and of their identification as those of the deceased.
58. Analysing this evidence, it seems to be clear that up to 15th September the evidence does not amount to more than showing a conspiracy to drive the doctor away from the village, nothing of any design to murder him. The evidence as to the collecting of goondas might probably contain a suggestion of giving the doctor 'a good thrashing'. The meeting of 15th September is said to carry the evidence nearer to conspiracy to murder. But as my learned brother has very clearly pointed out, it is impossible to attribute any such effect to this evidence. The acquittal of the Sub-Inspector is really conclusive on the point, for as Bruce J. observed in Rex v. Plummer (1902) 2 KB 339 at p. 349:
It is a very dangerous principle to adopt to regard a verdict of not guilty as not fully establishing the innocence of the person to whom it relates.
59. Coming to the petition of 23rd September (Ex. 5), this again falls short of establishing a conspiracy to murder. As to the assault, the remark supposed to have been made by Kalipada Bag that the doctor should be dragged to the tank and drowned in it, even if believed, seems to me to be a very slender basis for founding a conspiracy to murder. A casual remark of that kind can hardly be taken to be evidence of a pre-concerted plan to murder. Whatever value it might have, if taken along with the evidence of the words supposed to have been uttered by the Sub-Inspector at the meeting of 15th September, it loses all importance without that evidence.
60. As I have said, the most important link according to the prosecution is the last link in the chain, namely the evidence regarding the discovery of the supposed human remains and the other articles and their identification. As regards this evidence I entirely agree with what my learned brother has said and would merely add that however valuable it might be as circumstantial evidence of a conspiracy to murder, it was necessary in order that it might be used for that purpose that there should be something to connect it with some member or members of the conspiracy, if not with any of the accused actually charged. The mere fact that parts of the doctor's body or any of his belongings, assuming that they were identified as his, were found several days after the alleged murder, it may be, concealed or scattered in suspicious circumstances, would not by itself establish any connexion of these with any of the supposed conspirators. Some evidence aliunde, direct or circumstantial, showing such connexion was in fact required before a conspiracy could be deduced therefrom. As Grose J. put it in Rex v. Brisao (1803) 4 East 165 at p. 171, conspiracy is generally
a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.
61. See also Rex v. Meyrick (1929) 21 Or App R 94 at 99, 101. It is not necessary to discuss whether evidence may be given in the first instance of the existence of a conspiracy in general, without proof of the accused's participation in it, or how far the acts and declarations of any of the conspirators not charged may be given in evidence against any other conspirator: see on this Archibald's Criminal Pleading, Edn. 29, pp. 355 and 1423. Whatever that may be, the important point to note is that the acts and declarations must be acts and declaration of some member or members of the conspiracy, and the circumstances from which conspiracy is sought to be deduced must be circumstances with which some members of the conspiracy are shown to be connected. This important condition is wholly wanting in this case as regards the evidence of the alleged finds. Mr. Bhattacharyya referred us to the case in Shivabhai v. Emperor AIR 1926 Bom 5l3, but it will be seen there was evidence there to connect the accused with the find of the human remains.
62. The observations I have made are sufficient no doubt to establish misdirection in the Judge's charge to the jury; for, in the view I have taken, there was in fact no evidence to go to the jury of the charge of conspiracy, and on this ground alone the verdict and the convictions based thereon must be held to be vitiated. But what I desire to point out is that on the evidence as it stands, the convictions are wholly unsustainable, and must be set aside and there can be no question of re-trial of any of the accused. In my opinion as the appellants are entitled to an appeal on facts, the prosecution must stand or fall on the evidence already on the record. I therefore agree in the order which my learned brother has already announced.