1. The appellant was tried upon a charge of murder by a learned Additional Sessions Judge of 24 Parganas sitting with a jury. The jury by a unanimous verdict found the appellant not guilty under Section 302 of the Penal Code but by a majority verdict of seven to two found him guilty under Part II of Section 304 of the Penal Code. The learned Judge accepted the majority verdict of guilty under part II of Section 304 of the Penal Code, convicted the appellant of the relative offence and sentenced him to suffer rigorous imprisonment for seven years.
2. The prosecution case against the appellant was as follows: The appellant resided within the jurisdiction of Tollygunge Bengal Police station and was the leader of a party. The deceased Umaprosad Chakravarty was the leader of another party formed for the purpose of thwarting the appellant's party which indulged in certain misdeeds. On one or two previous occasions, there had been free fights between the two parties.
On 2-9-1953, at noon, the deceased Umaprosad Chakravarty went into a small hotel at 143, Netaji Subhas Road in Tollygunge and whilst seated there on a bench, the appellant entered the place.
A short-statured and fair-complexioned unknown man also entered the restaurant and stood at the back of the deceased. On the appellant uttering the words, 'Welcome, Mr. K. L. Chakravarty', the short-statured unknown man caught hold of the deceased's waist from behind.
The deceased turned towards the north and attempted to free himself when the appellant stabbed the deceased thrice on his chest and once on his abdomen in quick succession with a knife. The deceased fell down on the floor without being able to utter a word. The appellant and the other man then escaped. Umaprosad Chakravarty expired soon after the assault.
3. There were several witnesses to what happened inside the restaurant.
4. The appellant's defence 'inter alia' was that the proprietor of the hotel Balai Mukherjee had murdered the deceased in the early morning of 2-9-1953, owing to a deadly quarrel with the deceased over a girl named Chhaya Sen and that he, that is, Balai Mukherji, had falsely implicated the appellant
5. The facts and circumstances disclosed in evidence clearly point to a dastardly crime having been committed. Besides the direct evidence of a number of witnesses, there were circumstances of a reliable kind. In spite of such good admissible evidence as there was, a certain amount of inadmissible evidence was unfortunately let in. Unfortunately also, the learned Judge in the course of his summing-up referred to certain matters to which reference will be made presently and which, in our view, must have had some effect, upon the minds of the jury in coming to their conclusion as to the guilt of the appellant.
In view of these errors, we have decided to order a fresh trial of the appellant. In that view of the matter, we have to refrain from discussing the evidence in the case. We must, however, in order to dispose of this appeal, refer to such matters as, in our view, entitle this Court to set aside the verdict of the jury and the conviction which followed and to order a retrial of the appellant upon a charge under Section 304, Part II.
6. Mr. Nalin Chandra Banerji, appearing on of the appellant, has invited our attention to those parts of the charge where the learned Judge referred to the appellant as a notorious 'goonda'. It appears that P. W. 2, Sambhu Charan Das, spoke of the appellant as a notorious 'goonda' in the locality. However, whether the reference by the learned Judge to the appellant as a goonda was founded upon evidence or not, it cannot be doubted that the bad character of a person accused of an offence, in which his bad character is not in issue, is entirely irrelevant.
Section 54 of the Evidence Act is quite clear on the question. Mr. Banerji has, in our view, rightly contended that the constant reference to the appellant as a goonda was bound to adversely affect his client in so far as the crime charged against him was concerned.
7. Mr. Banerji has next complained that the learned Judge's direction at page 98 of the Paper Book to the effect that the name of the appellant, as the assailant of Kachuni Babu, i.e., the deceased, was in the air soon after the occurrence, was a misdirection. To begin with, the statement that the appellant was generally supposed to be the assailant would be hearsay.
The learned Judge should have been careful to point out that a rumour to the effect that the appellant had attacked and killed Kachuni Babu was to be completely eliminated from the jury's consideration of the case. In our view the statement made by the learned Judge that shortly after the occurrence Nimoo's name as the assailant was in the air was a misdirection which was likely to influence the jury's decision.
8. Mr. Banerji next pointed out that the evidence of P. W. 12, Ramendra Nath Chakravarty as to what he had heard from the deceased two days prior to the occurrence was entirely inadmissible. Mr. Banerji, in our view, is quite right; and the learned Judge, in our view, was wrong in not rejecting that part of the evidence of P. W. 12, Ramendra Nath Chakravarty. The learned Judge further erred in repeating this piece of inadmissible evidence in the course of the summing-up. At page 106 of the Paper Book, the learned Judge directed the jury as follows:
'He (P. W. 12) further says that two days before the murder of Kachuni he heard from Kachuni that Kali Ghosh, Rabi Ray, Hari Ghosh and others of the party of Kachuni had kidnapped a brother of Nimoo (pointing to Nimoo's brother Kartick who is inside the court room) but that Kachuni was also implicated in such kidnapping case though he was not a party to such kidnapping.'
This direction was entirety wrong, for it amounted to an invitation to the jury to consider an alleged statement of the deceased as to some other matter made two clays prior to his death. Had the statement concerned the cause and/or the circumstances of his death, it would have been admissible under Section 32(1) of the Evidence Act. True, the object of introducing this piece of evidence was to furnish a background or indeed a motive for the crime.
That, however, cannot excuse the reception of inadmissible evidence. If relevant, the matter should have been proved 'aliunde', that is, by other evidence.
9. In our view, the above defects and the admission of inadmissible evidence already referred to must have influenced the jury in their determination of the question whether or not the appellant was guilty of any offence. It is, at all rimes, a difficult matter for a court of appeal to assess the evidence on record, for it is deprived of the advantage of hearing and watching the witnesses. The admissible evidence against the appellant appears to be overwhelming and we think that this is a fit case for retrial.
10. We would, accordingly, set aside the verdict of the jury and the conviction and sentence which followed and order that the appellant be retried upon a charge under Section 304 Part II of the Penal Code.
11. The appeal is allowed to the extent indicated. There is no question of granting any hail to the appellant. Pending the retrial, we direct that he be kept in custody.
Renupada Mukherjee, J.
12. I agree.