1. The appellants, Brinchipada Dafadar and Sushil Dafadar alias Sushil K. Dafadar, were tried by the learned Additional Sessions Judge of Khulna and a jury, were convicted under Section 307 in the case of appellant 1 and under Section 307/109 in the case of appellant 2. Bach of the appellants were, on conviction, sentenced to transportation for life by the Judge. The charge against appellant 1 was that he on 29th November 1936, at Jaipatrakati alias Beltola Bazar, P. S. Kaliganj, gave cuts to one Hazari Baldeo's throat with a knife with such intention and under such circumstances that if by that act he had caused the death of Hazari Baldeo he would have been guilty of murder, and that he had caused incised injuries to Hazari Baldeo's throat by the said act (Section 307, I.P.C.). The charge against appellant 2, Sushil K. Dafadar, was that on the date referred to above, in the charge framed against appellant 1, he abetted the offence of attempt to commit murder (committed by Birinchi) by actively aiding him when he gave cuts to Hazari Baldeo's throat to cause death and in consequence thereof and with the said aid the incised injuries were in fact caused to Hazari Baldeo's throat by Birinchi (Section 307/109, I.P.C.). The case for the prosecution and the evidence led in the case in support of that case were placed before the jury by the Judge; and so far as we can see, the Judge exhaustively dealt with the evidence led on behalf of the prosecution in the case. In support of the appeal a number of points were raised.
2. It was, in the first place, urged that the conviction of abetment of attempt could not be sustained and the jury were not directed properly on this aspect of the case at all. This relates to the charge of abetment as framed against appellant 2, Sushil K. Dafadar. It appears to be clear from the learned Judge's charge to the jury that the case for the prosecution, so far as the case of abetment by appellant 2 was concerned, was placed before the jury at the very outset. It was stated that the case for the prosecution was that the accused Birinohi, from behind, put a rope round the neck of Hazari as he reclined on his right, that he (Birinchi) called out to Sushil who came with two Moslems and that as he gave out one cry, one of the two Moslems gagged his mouth. Hazari was dragged into a deserted ghar when he was thrown down and the rope was tightened by Sushil, and Birinchi applied knife to his throat, while one Moslem held him fast by hands and legs and the other also helped. Then it appears that when explaining the law to the jury, the Judge referred to the provisions contained in Section 107, I.P.C., and explained the same. It was placed before the jurors that, in the case' before them, abetment as charged against appellant 2 Sushil came under the third category of aiding and assistance. The third category referred to here is the third clause occurring in Section 107, I.P.C., mentioned as 'Thirdly.' The learned Judge stated this to the jury:
The aiding by Sushil, according to the prosecution story, and the aiding by Derastulla have been stated by Hazari; if ho is believed, that would amount to aiding. Under Section 109, I.P.C. the man who abets is equally liable with the man who commits.
3. Judging from the manner in which the case of abetment was placed before the jury by the learned Judge, we are unable to appreciate the point that was raised in support of the appeal to which reference has been made. Section 107 thirdly, speaks of intentionally aiding by any act or illegal omission, the doing of that thing. Expln. (2) to Section 107, I. P. C, is this:
Whoever, either prior to or at the time of the commission of an act; does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof, is said to 'aid the doing of that Act.
4. In view of these provisions of the law to which reference has been made above, there can be no question that abetting or aiding by any act done either prior to or at the time of the commission thereof, amounts to an offence as contemplated by Section 107,1. P.C. Here what was aided was the substantive offence charged against appellant 1, Birinchi, under Section 307,1. P. C, namely attempt to commit murder. There was the aiding by way of abetment as contemplated by Section 109, I. P. C, by appellant 2, Sushil Dafadar. He was in that way, what is described in legal phraseology, a principal of the second degree, being one by whom the actual perpetration of the crime was aided and abetted at the very time when it was committed. That was the effect of the evidence that was led by the prosecution in the case before us; and we are unable to say that the conviction of appellant 2 Sushil under Section 307/109 was in any way illegal or unsupportable on the evidence led by the prosecution.
5. In the next place it was urged in support of the appeal, with reference to the cases of both the appellants before us, that material witnesses not having been examined in the case, the trial was defective. It was also argued that the Judge's direction on non. production of some material witnesses was not a proper direction in the case. With reference to these contentions raised in support of the appeal, reference was made to the non-examination of one Bistu Thakur, as also to the non examination of another person named Abhoy Nath. Reference was made specifically to these persons in the learned Judge's charge to the jury. It was mentioned that:
Bistu Thakur left the shed in which the person Hazari Baldeo was attacked by the appellants shortly afterwards. Bistu Thakur was examined in the committing Court, but was not tendered for cross-examination in the Court of Session.
6. The reason given for the adoption of such a course was, as mentioned in the Judge's charge to the jury, that this man, Bistu Thakur, was found in the company of people interested in the defence. With reference to the other person Abhoy Nath, it was mentioned in the Judge's charge to the jury that at the time of the occurrence, according to the evidence led on the side of the prosecution, 'Abhoy Nath's sweet shop was only working.' The jurors were asked to consider if Abhoy Nath could go against the Dafadar, the owner of the land where his shop stood, and if he knew about the cry when asked by Sushil. In view of these statements made by the Judge in his charge to the jury relating to the examination of the two persons, Bistu Thakur and Abhoy Nabh, we are unable to come to the conclusion that sufficient directions were not given to the jurors in the matter of the non-examination of these two persons on behalf of the prosecution. The reason for non-examination was stated to be the reason given by the prosecution; and it-was for the jurors to draw their conclusion if any adverse inference was to be drawn on account of the non examination of the two persons referred to above.
7. It may be mentioned in this connexion that the prosecution is not bound to call any particular witness or witnesses when there is reasonable ground for the Public Prosecutor to come to the conclusion and, believe that such witness or witnesses, if called, will not speak the truth; nor was it incumbent on the prosecution to call any witness when the Public Prosecutor believed that the evidence of such person was wholly unnecessary for the trial. That was sufficiently indicated in the Judge's charge to the jury in the case before us, so far as the non-examination of the two persons, Bistu Thakur and Abhoy Nath, was concerned. It was open to the jurors to draw inference unfavourable to the prosecution for the non-examination of the witnesses. In support of the appeal, in addition to the grounds referred to above, it was pressed before us that the circumstances in favour of the defence were not properly placed before the jury by the Judge. Reference was made in this connexion to the contents of the first information report in the case; and portions of the evidence given by some of the witnesses for the prosecution were brought to our notice. So far as the first information report was concerned, it appears-from the Judge's charge to the jury that the contents of the same were placed before the jurors. It was specifically mentioned that the person who gave the first information in the case, Mahadeb, could not name any of the accused. We are unable to see that there was any misdirection or non-direction in the matter of placing the first information report before the jury in the case before us. With reference to the portions of evidence to which our attention was drawn, it may be said that there were certain discrepancies with reference to matters of detail; but in view of the way in which the entire evidence was summarized before the jurors by the Judge, in which all the main features of the case were exhaustively dealt with, we are unable to hold that non-reference to minor matters of detail amounted to misdirection or non direction in the case before us.
8. The only other question which was raised in support of the appeal was the question of sentence. In view of the nature of the act done by the appellants acting together in concert, and having regard to the atrocious nature of the crime committed by them, we are unable to hold that the sentence of transportation for life as passed on them by the Judge, was in any way severe. The appeal is dismissed.
9. I agree.