1. The appellants Nagendra Bhakta and Kamala Kanta Bala were put on their trial with three other persons, Jamini Bhakta, Rajani Bhakta and Kanchi Bewa, Under Sections 201 and 302/120-B I. PC. The trial was held with the aid of a jury consisting of 9 jurors. The jury unanimously found all the five persons not guilty Under Section 302/120-B. They also unanimously found Jamini, Rajani and Kanchi not guilty Under Section 201 either. But they found the other two accused persons, the two appellants before us, guilty Under Section 201, I. PC, by a majority of 7 to 2 in the case of Nagendra and 6 to 3 in the case of Kamala.
2. The allegations of the prosecution, so far as the charge Under Section 201 was concerned were that one Provat Chandra Sarkar was murdered in the house of one Sarat Bhakta, and the appellants Nagendra and Kamala with some other persons removed the dead body of Provat from Sarat's house to the verandah of a mosque with the intention of screening the offenders-persons who had committed the murder. It was the removal of the corpse from Sarat's house to the mosque which, according to the prosecution, constituted an offence Under Section 201, I.PC. Now to constitute an offence Under Section 201 there must be disappearance of some evidence of the commission of an offence.
3. The offence that was committed in the present case was an offence of murder and the evidence that was caused to disappear was the fact that the corpse was lying at Sarat's house. This fact, namely that the corpse was lying at Sarat's house and at no other place, was no evidence of the commission of the offence of murder. It may be some evidence of where the offence was committed or who had committed its, but it was no evidence of the fact that a murder had been committed. It is not impossible to conceive of the commission of an offence apart from where and when and by whom it was committed. This aspect of the case the learned Judge did not put to the jury in his charge, an aspect which in my judgment was a very important aspect in a case Under Section 201, and I am very doubtful if the verdict of the jury would have been what it was if there had been no omission on the part of the Judge to put that important aspect of the case well before the jury in his charge, This omission, in my judgement, was a misdirection of prime importance and therefore vitiated the verdict of the jury. I would therefore allow the appeal and set aside the conviction and sentence of the two appellants. Both the appellants must be set at liberty at once.
4. I agree.