1. The appellants have all been convicted of an offence punishable under Section 302 read with Section 120-B, Penal Code, for conspiring to murder one Saharulla Bepari. In the Sessions Court a further charge was added to the effect that they also conspired to commit an offence punishable under Section 201 of the Code. This of course is quite meaningless. If the body was in fact concealed, this was done in order to cover up the tracka of the suecessful conspirators. However, the learned Deputy Legal Remembrancer did not attempt to support this second conspiracy finding and it is not necessary for us to say anything more about it. It appears that Saharulla was a litigious and unpopular money-lender with several enemies. On 8th January last he went to Kurigram where he had a case in one of the Civil Courts. He asked the appellant Tangura to meet him at the station in the evening and to escort him home. He returned by the evening train accompanied by a doctor Gafur Ali Sarkar and he left the station in company with prosecution witness 1, Pachaulla and the appellant Tangura. He has not been seen since. We accept the evidence of identification of the corpse which was eventually discovered and there is no, doubt that he was murdered. The question for our determination now is whether id has been proved that the appellants conspired to murder him.
2. The case, as committed by the learned Magistrate to the Court of Session, was extremely weak. In my opinion, it could not be put higher than one of vague suspicion and it was not really worth committing at all. The reason for this is that the prosecution had met with a serious disappointment. They hoped to get the evidence of Pachaulla who was one of the accused. But when he was tendered a pardon, he refused to accept it. When the case came on for trial in the Court of Session an extraordinary thing happened. When Pachaulla was asked to plead, he stated that he was not guilty but that he would be glad to tell the truth. He was then tendered a pardon by the learned Judge and was examined by the prosecution as their first witness. It is mainly upon the evidence of this man that the present convictions are based.
3. Put shortly his evidence is to the following effect: He was able to state that Saharulla was dead, because according to him, he was an actual eye-witness of the murder. He states that he and Tangura met the deceased at Tista Station and then accompanied him home. They followed the railway line for some time and then took a path leading across some low lying land. Before they reached home, the other appellants and some other men, who were lying in wait in a bamboo clump, came out and murdered the deceased. He was able to recognize them by their voices. The appellant Dhara Baiyo gave the deceased a cigarette and struck a match in order to light it. Then when the deceased put down his head' in order to light the cigarette, a man called Bhulla struck him twice with a big knife on the neck. The witness then fled in terror; but he managed to see the dead body being dragged away. Just before dawn all the appellants came to his house and told him that he was not to say anything about what he had seen.
4. The learned Judge before asking the assessors to give their opinion charged them at very considerable length and he put before them several questions which they must answer. Among those questions was this: Whether the story of the accused' Pachaulla stands corroborated in material' particulars. He never asked them to consider whether it was true or whether it established a conspiracy as alleged by the prosecution. Actually there was not a single word of a conspiracy or anything about it from start to finish. As the man's own evidence is to the effect that he was innocent entirely he was obviously not in a position to throw any light on a conspiracy of which he was not a member and about which he knew nothing. If his evidence is accepted as the truth and the whole truth, he and the appellant Tangura were eyewitnesses, while the other appellants should have been tried by a jury on a charge of murder. The present conviction of conspiracy is based upon absolutely nothing and cannot possibly be supported.
5. It only remains to consider whether we should order a retrial. The prosecution suggests that the appellant Tangura was a decoy. There is nothing in the evidence of Pachaulla to suggest this. It is admitted that he met the deceased at the station at the request of the deceased himself and there is nothing to suggest that he had anything to do with the route chosen or that he led an unsuspecting man into a prepared ambush. The only thing proved against this appellant, if we accept the evidence of the police officer, is that he was aware of the place where the corpse was concealed. This is quite insufficient to support a charge of murder.
6. The charge against the other appellants would depend upon the credibility of the witness Pachaulla. Neither side has supported him as a witness of truth. According to the defence he has implicated the appellants falsely in order to save his own skin. According to the prosecution he himself had something to do with the murder and he suppressed all knowledge of it in his deposition. His own conduct in connexion with the case does not suggest that he is a reliable sort of a man. In the committing Magistrate's Court the prosecution expected that he would give evidence in their favour and he was offered a pardon. He refused to accept it and then in the Court of Session he volunteered to give evidence without any offer being made to him. The deposition which he actually gave appears to be marked with an entire want of frankness and he has put forward a most unconvincing story; for example, we cannot imagine why the murderers should come to him and give him an entirely gratuitous information of the place where they had concealed the corpse. In our opinion it would not be right that the appellants should be retried on evidence of this sort. The appeal is accordingly allowed; the convictions and the sentences passed on the appellants are set aside and they will be set at liberty immediately.
7. I agree.