1. In this case we have before us a reference under Section 374, Cr. P.C., in respect of the accused man Madhusingh who has been sentenced to death. We have also an appeal on the part of Madhusingh and we have further an appeal on the part of Powali, the co-accused, who was also convicted under Section 302, I.P.C., but was sentenced to transportation for life. Both the accused were also convicted under Section 392, I.P.C., of robbery, but no separate sentence was passed by the learned Judge upon this charge. It appears that there were five accused persons and the prosecution case was that six persons had really been concerned in murdering a Marwari Shroff, Badrinarayan Agarwalla, and his servant Lin Lalung. The prosecution case was that Badri was going with his servant with certain rupees and small change to a Tea Estate called Kulikuchi and that, having crossed the Kapili river ferry and having come to a little streamlet called Sahoridang, Badrinarayan and his servant were fallen upon by the accused and were killed. They appear to have been cut to death with long handled instruments of the character of a dao. The prosecution case was that the accused persons had met on the day before the occurrence and at a time previous to that to arrange this murder for the purpose of robbery. The prosecution case also was that more than five persons were taking part in the transaction. In the end, there being very little evidence except the confession of Powali which was evidence against him, the jury came to a clear finding, first of all that the evidence of conspiracy on the previous occasions was insufficient and they acquitted all of the accused persons on the charge of conspiracy. In the second place they found that it was not made out that so many as five persons had taken part in the occurrence at all, the result being that Section 395, I.P.C., was entirely inapplicable to the case.
2. The learned Judge had told that, if the jury found that the persons taking part were not shown to be five in number they could then split up the charge under Section 396 and treat it as a charge under Section 302 together with a charge under Section 392, I.P.C., that is to say, treat it as a substantive charge of murder plus a substantive charge of robbery; and the jury in bringing in their verdict against the two appellants before us have acted upon that direction. The result is that, although these persons have all been acquitted on the conspiracy charge and in addition to that were only indicted for what I may call constructive murder under Section 396, and although the conditions on which the applicability of that section depends have not been made out, these people have been convicted of murder without ever being properly charged. The matter is said to have been made better-although I think it has been made worse-by reason of the muddled form under which the charge under Section 396 was drafted in the Sessions Court. It appears to have been drafted by somebody who really ought to obtain some further instruction in drafting because he charged all the accused that they committed dacoity by robbing Lin Lalung and that, in the commission of such dacoity, Powali murdered Badrinarayan and Mudhusingh murdered Lin Lalung. Then it is said that in that way they all committed an offence under Section 396. As the charge contains the statement that Powali murdered Badrinarayan and Madhusingh murdered Lin Lalung if it said that this charge may be regarded by us as though it contained within itself a charge under Section 302. If it did, presumably Powali was only charged with murdering Badrinarayan and presumably Madhusingh was charged with only murdering Lin Lalung. As a matter of fact, though the evidence is not consistent upon this matter, it would appear that the main bulk of the prosecution case was to show that Powali murdered the servant and Madhusingh murdered the master. We do not know what the Jury thought about that matter. We do not know who murdered whom according to the view taken by the jury. The confession of Powali is an important matter to consider and this matter has not been dealt with in a way which can possibly be supported. It is quite clear that the charge under Section 302 is not a minor charge to the charge under Section 396. The charge under Section 396 is a charge under which a person who has not committed murder is liable to be held to commit murder because he is a member of a gang of dacoits in the course of which somebody else committed murder. That being so, the condition of this record is quite out of order and these two accused persons must be remanded for retrial.
3. The appeals must be allowed, the convictions and the sentences on these two accused must be set aside and their cases must be remanded for retrial. It is necessary to say that the case about the antecedent conspiracy under Section 120-B, I.P.C., should not be restarted against these people and the case is not to be restarted against them on the footing that there were five people taking part. The case is to be started against them upon a substantive charge under Section 302 and a substantive charge under Section 392, I.P.C.
C.C. Ghose, J.
4. I agree.
S.K. Ghose, J.
5. I agree.