1. The appellants in this case were tried by the learned Sessions Judge of Pabna and Bogra on a charge framed under Section 302/34, Penal Code. The jury by a majority of 5/4 found them all guilty under that section and the learned Judge in accordance with that verdict sentenced them to transportation for life. The ease for the prosecution briefly was that these four appellants and another man Mahiruddin Fakir who has been examined as an approver in the case murdered one Kusumbala wife of Sasadhar Das on the night of 31st January 1940. It was the case for the prosecution that the appellant Abu was on bad terms with Sasadhar Das and that at the time of the occurrence there was a criminal case pending against Abu which Sasadhar Das was conducting on behalf of the prosecution. This case was actually fixed for 1st February 1940 and Sasadhar Das left home in connection with it on the afternoon of the murder. The story is that on that night the deceased woman was sleeping in a hut with a girl called Nanibala who was about eight years of age. The four appellants and the approver came into the hut that night and three of them seized the woman and held her down while the appellant Abu slashed her across the neck with a dao. The deceased woman attempted to resist and produced a dao from under her pillow with which she cut the appellant Arikulla on the left thumb. The appellants then removed her body from the chouki on which she was lying, laid her on the ground on her back, covered her with a quilt and ran away. Nanibala raised an alarm and her father, Sasadhar's mother and other witnesses came up.
2. Information was lodged to the thana on the next day at 12 o'clock. The body was sent for post mortem examination and the Civil Surgeon found two injuries on the neck. One of these was a superficial wound in front of pomum adami vertical in character and about 1' long and joining the oblique wound. The other which was the fatal injury was an incised wound running from below the lobe of left ear and extending obliquely down and forwards to about 1/2' below and to the right of pomum adami cutting lower edge of Hyoid bone and thyroid cartilage and the left juglar vein was severed. The lower end of the wound is bifurcated. The opinion of the doctor was that both these injuries were suicidal and to that opinion he adhered when giving evidence in Court. He admitted however that it was possible that the fatal injury might have been homicidal injury.
3. The appellants Abu and Abbas were arrested on 4th February and the approver on the 6th. The latter produced a dao from his house. The prosecution case was that this was the dao which belonged to the deceased woman and which the appellants had taken away from her house in mistake for the dao which belonged to Abu. There was a test identification held in Bogra jail at which the appellants Abbas and Arikulla were identified by the witness Nanibala. The defence of the accused was that the deceased woman had actually committed suicide and it was suggested that Sasadhar Das her husband took advantage of it to implicate the accused because they were his enemies. In addition to the evidence of the approver, there was the direct testimony of the girl Nanibala who said that there was a lantern burning in the room and that she saw five men there among whom she named two and subsequently identified Abbas and Arikulla. It is not of course disputed that the death of Kusumbala was due to the injury to the throat and the neck and the two main questions before the jury were, first, as to whether that injury was homicidal or suicidal and secondly whether if it was homicidal the appellants or any of them were guilty of murder.
4. Various criticisms have been levelled at the charge delivered to the jury by the learned Judge. It is contended in the first place that his directions on the law applicable to the case were insufficient. Now, in dealing with the charge, he explained Sections 299 and 300, Penal Code, to the jury. He said quite correctly that although there was a keen contest as to whether this was a ease of suicide or homicide it has not been disputed that the intention was to cause death. He went on quite correctly to say that if it was a case of homicide undoubtedly murder had been committed. There is nothing inadequate or incorrect in this explanation of the law and it was on the evidence in the particular case a sufficient and proper direction to the jury. With regard to Section 34, Penal Code, he said that that section prescribed the principle of joint liability. He then adverted to the evidence which was that three of the accused had held the woman while the fourth man cut her throat and he said that if a criminal, act was done by several persons in furtherance of the common intention of all each of these persons was liable for that act in the same manner as if it was done by him alone. As the purpose is common so must be the responsibility. We are quite satisfied that upon the evidence in the case this direction with regard to the essential elements of Section 34, Penal Code, was both correct and sufficient.
5. The charge of the learned Judge has further been criticised on the ground that it was incorrect for him to refer as he did do to Lyon's Medical Jurisprudence when dealing with the question whether the injury was homicidal or suicidal. In the first place it was certainly competent for the learned Judge to refer to a standard text book when a question such as that which had to be decided by the jury in the present case was being discussed. Secondly, we have considered carefully the charge actually delivered by the learned Judge on this aspect of the case and we are satisfied that it was full and fair and that the evidence in support of both the theories was placed before the jury completely and impartially. The learned Judge began by pointing out that in the opinion of the doctor the injuries were suicidal and he then summarized the reasons which the doctor gave for that opinion. He told the jury that the testimony of the doctor was that of an expert and that great weight should undoubtedly be attached to it. He went on to say quite correctly that they might discard that opinion if they found that there were good grounds for doing so. He then put in detail to the jury the points in the evidence which were consistent with the theory of suicide and his comment on that aspect of the case further was that the doctor did not have before him the entire evidence adduced in the case and that it was the duty of the jury to consider that entire evidence and then decide which theory they should accept. He made it perfectly clear to the jury that if they' found that it was a case of suicide the accused must be acquitted or that if there was reasonable doubt as to whether it was suicide or homicide the duty of the jury was also to acquit them. He then went on to point out the circumstances which militate against both the theories and in doing so he made certain references to Lyon's Medical Jurisprudence. As has already been said he was certainly entitled to refer to this book and we are unable to hold that in so doing he can be held to have misdirected the jury. The charge contains a very full and complete summary of all the evidence on the question whether the injury was homicidal or suicidal and we are satisfied that that aspect of the case was put to the jury correctly and completely. The learned Judge went on to say that if the jury found that the injury was not suicidal but homicidal the crucial point for determination was whether it was the accused who participated in the act of killing. He then discussed the evidence of the solitary eye-witness the girl Nanibala who was about 10 years of age. He warned the jury that young girls were impressionable and liable to be easily tutored and that therefore they should treat her evidence with extreme caution. He pointed out the discrepancies in her various statements and emphasized that she did not disclose at once either the details of the assault or that she had recognized any of the assailants.
6. The learned Judge then dealt with the evidence of the approver. He gave all the necessary warnings to the jury as to the manner in which they should treat this evidence and he pointed out that there were certain aspects of the story told by him which it was very difficult to accept. He then went on to deal with the question of corroboration of the approver and in this connexion referred to the evidence of the other witnesses and to the injury on the left thumb of the appellant Arikulla and to the important fact that according to the prosecution case the dao which was found in the hut of the woman actually belonged to the appellant Abu while the dao produced by the approver and which according to him had been taken away by the murderers after the occurrence belonged to the deceased woman Kusumbala. His charge on this point was criticized on the ground that he told the jury that if they believed that the dao belonged to Abu the approver's evidence was amply corroborated. We are quite unable to say that there was anything inappropriate in the use of this adjective. If the jury did accept the prosecution case that the dao found near the deceased woman belonged to the appellant Abu and not to her it was certainly very strong evidence that the death was homicidal and not suicidal and the Judge was perfectly correct when he stressed its importance before the jury.
7. On careful consideration of the whole charge delivered by the learned Judge and of the argument advanced on behalf of the appellants, we are satisfied that in the present case there is no misdirection and no material non-direction which could possibly warrant any interference with the majority verdict of the jury. In our opinion that verdict must be sustained and this appeal must be dismissed.
8. I agree.