1. This is an appeal from the jail. It was admitted by the learned Judges presiding over the undefended Bench. The appellants were convicted of murder. The learned Judges issued a rule calling upon them to show cause why they should not be sentenced to death. As are suit Mr. Mukherjee appeared on behalf of the appellants at the request of the Crown. I will deal with the Rule first. The prosecution case is really very simple. The deceased was a Naib. The two appellants attacked him in a boat armed with deadly weapons and inflicted serious injuries on him, as a result of which he died. The motive alleged was that the deceased had been helping the police to investigate a case under Section 110, Criminal P.C. against the two appellants. Now we entirely agree that this is a case in which a sentence of death ought to have been passed. The murder was a brutal and cold-blooded one. There were no extenuating circumstances of any sort and the reasons given by the learned Judge for not inflicting the death sentence do not commend themselves to us.
2. The position however is as usual very difficult from the practical point of view. As at present advised we accept the law as laid down by Costello and M.C. Ghose JJ. in Alef Shaikh v. Emperor (1935) 62 Cal. 952 and in Khoda Bux Hazi v. Emperor : AIR1934Cal405 . The effect of those decisions is that we cannot examine the facts for ourselves to decide whether the appellants are guilty or not. Being placed in that position we are certainly not going to inflict a sentence of death. The result of the failure of the learned Judge to do his duty in this case was that the appellants are precluded from asking us to examine the evidence in the case to see whether we are ourselves satisfied of their guilt. It would be an intolerable position if in such circumstances they were to be sentenced to death. We shall not therefore interfere with their sentences. In dealing with the appeal we have merely to consider whether the jury were misled by the charge delivered by the learned Judge. We have been through it and also through most of the evidence. There is nothing to which exception can be taken in the way in which he dealt with the law applying to the case. It might not perhaps be impossible to deal with the evidence in a more systematic way. But in our opinion there are only two matters which require comment.
3. The prosecution called evidence to show that inquiries were going on against the appellants and that the deceased was helping the police in the investigation. As it was the prosecution case that this provided the motive for the murder, it could not be said that this evidence was inadmissible. The learned Judge did not specifically warn the jury that this could not be used as evidence of bad character. However he' dealt with it as evidence of motive and I can only suppose, the jury understood that it was introduced for that purpose, and for that purpose only. In fact there is no evidence to the effect that the appellants were actually of bad character. The other matter relates to the dying declaration. My learned brother pointed out at the hearing that the way in which the learned Judge dealt with this was not very logical. It is to be noted that the deceased was the person who actually gave the first information report and that the learned Judge said this:
If the deceased is tutored to file the first information report, as is suggested, no question of. tutoring arises in the case of the dying declaration.
4. Of course if the deceased was tutored to file the first information report, the dying declaration, which is a mere repetition of it, was also due to tutoring. But I imagine the learned Judge was dealing with an argument that had been addressed to the jury to the effect that the deceased had been specifically tutored for the purpose of making that dying declaration. After all Judges in their charges have to deal with the actual points that are raised at the trial before them; now here there was evidence to the effect that there was a man outside the door who was supposed to be connected with the deceased and I can only suppose that this was brought in to support a case that he had been there in order to tutor the deceased. Finally, the learned Judge did not point out to the jury that the deceased had not been cross-examined. I myself always find it difficult to believe that the failure of a Judge to do this can have much effect as the jury know perfectly well that the deceased had not been cross-examined and after they have spent several days in hearing the case, they know what cross, examination is and the purpose it serves. However in the present case in view of the fact that it was the deceased who gave the first information report, we do not think any importance attaches to this part of the evidence at all. It is a mere repetition of what the man had already said. In these circumstances we do not think that the opinion of the jury could have been affected in any way thereby. The appeal is dismissed and the Rule is discharged.
5. I agree. I wish to say a few words about the position in which we find ourselves regarding the question of enhancement of sentence. Under the law, as it now stands, as interpreted in the two cases referred to by my learned brother, the position is this: An accused when appearing in answer to a rule to show cause why the sentence passed on him should not be enhanced is in the same position as if he were appealing from an order of conviction. When the trial has been by jury as in this case and when the sentence is not one of death the accused cannot ask the Court to enter into questions of fact. If the accused had been sentenced to death we could have considered whether or not the jury were right in their conclusions on the facts, but as the accused have not been condemned to death they cannot appeal on facts and we are therefore debarred from considering whether or not the facts are true. In these circumstances I feel that it would be unjustifiable and unfair to enhance the sentence passed to one of death. At the same time I feel that if the case be true the learned Judge had no grounds whatsoever for not passing the normal sentence of death in a case of murder of this description. As regards the charge to the jury I agree with what my learned brother has said. The learned Judge should always remember in charging the jury that they should be cautioned against being influenced against the accused by evidence which shows or tends to show that the accused is of bad character. It may have been necessary in this case for the prosecution to establish motive and in doing so it may be that evidence had to be given which tended to show that the accused were of bad character. The learned Judge should have cautioned the jury and told them that they were not to draw an adverse inference against the accused from the fact that they were the subjects of a proceeding under Section 110, Criminal P.C. This he did not do. But as has been pointed out by my learned brother, there is strictly speaking no evidence given of bad character. The evidence is that proceedings against the accused were pending under Section 110, Criminal P.C., not that they had been bound down under that Section or that they had been convicted of any offence. There is thus no evidence given to establish the bad character of the accused. Nevertheless it would have been only fair to the accused to caution the jury in the manner stated above in the circumstances of this case.
6. The next criticizm of the charge relates to the manner in which the learned Judge has dealt with the declaration of the deceased prior to his death. The learned Judge dealt with this matter in an illogical manner. He seems to think that this declaration was made before the first information report was lodged. If there was time for tutoring the deceased before he lodged the first information report, there was still more time for tutoring him before he made the declaration. There is thus no force in the learned Judge's observation that even if the complainant had been tutored to file the first information report no question of tutoring could arise in connexion with the 'dying declaration.' I agree, however that these defects in the charge do not amount to mis-directions and I am satisfied that they did not lead to any error in the decision of the jury. That being so I agree in the order which has been passed by my learned brother.