1. In this case it appears that in the District of Faridpur on opposite side of the river Kumar there are two Hats, one at Kabirajpur on the south bank, one at Gosaidia on the north bank. The Kabirajpur Hat belongs to the Maharaja of Cossimbazar and one Dhulu Mia and is within the jurisdiction of the Rojair Police Station. The Gosaidia Hat belongs to an influential Zamindar named Krishna Das Roy and is within the Madaripur Station. The distance between the two Hats is some 670 yards and both sit on the same days, namely, Mondays and Fridays.
2. The case for the prosecution then was that the officers of the Rajair Police Station entered into conspiracy with the men of Cossimbazar and Dhulu Mia to suppress the Gosaidia Hat and in pursuance of that conspiracy, these Police Officers, Chowkidars and others, the men of Cossimbazar and Dhulu Mia, some 50 to 60 in all, armed with guns, spears and Lathies, marched in a bony against Gosaidia. When they had proceeded some distance, they were met by two of Krishna Das Roy's caretakers named Ulfat and Meher, who sought to bar their progress. An altercation ensued and in the course of the altercation constable Abdul Rahim Mir fired, shooting Ulfat and constable Benode Bandhu Banerjee similarly fired, shooting Meher. Ulfat died of his injuries on the following day.
3. Five parsons were placed on their trial, namely, Abdul Rahim, Benode Bandhu Banerjee and three others, Sitanath De Dafadar, Sonaulla Chaukidar and one Rafi Mia. The charge against Abdul Rahim was that he had caused the death of Ulfat and so committed the offense punishable under Section 302 or Section 204 of the Penal Code. Against Benode Bandhu there was a charge under Section 426 of causing grievous hurt to Meher, and against him and the last named three there were further charges of rioting, and, in reference to the Act of Abdul Rahim and the death of Ulfat, of committing the offense punishable under Section 304 read with Section 149 of the Code. In these charges the common object of the unlawful assembly in the course of which rioting and the other offences charged were committed was set out as being 'the common object of assaulting the people of Gosaidia Hat and of raiding and breaking up of the said Hat.'
4. The case for the defense was that on the 2nd of September information was received at Rajair from a Cossimbazar officer that on the following day, being a Monday and a Hat day, a breach of the peace was anticipated. Next morning the Sub-Inspector with the 2 constables, the Daffadar, and some Chowkidars proceeded to the spot. They found a large number of men armed with spears, Shields and Lathies, crossing in a boat or boats and making for Kabirajpur, where there was a similar large body of man also armed. The man crossing were turned back. They re-assembled on the north bank. The Sub-Inspector commanded them to disperse, and when they paid no heed, called upon the constables and Chowkidars to disperse and arrest them and also threatened to fire. In their attempt to disperse the assembly the constables and Cowkidars were surrounded, and being attacked by the ringleaders, Ulfat and Meher, who were armed with long spears (Katras) and shields, the constables eventually fired, Abdul Rihim shooting Ulfat and Benode shooting Maher.
5. The trial was by Jury and the Jury by their unanimous verdict found the appellant Abdul Rahim guilty under Section 304, Benode Bandhu guilty under Section 324 and acquitted all the accused of all the other charges. The learned Sessions Judge agreed in the verdict.
6. Ordinarily the verdict thus arrived at would be conclusive, but in this case we find that the defense (which was in substance that the Sub-Inspector, being the officer in charge of the Rajair Police Station, and the two constables under his orders were acting in pursuance of the provisions contained in Sections 127 and 128 of the Criminal Procedure Code) and the result of that defense, if believed, were not placed or properly placed before the Jury. The prosecution as instituted was one that required no sanction. But the Jury should have been told that if they could not accept the case for the prosecution, they would have next to consider the provisions of Sections 127 and 128 of the Code of Criminal Procedure and determine whether the Sub-Inspector acted or meant to Act under those sections and whether the constables acted under his orders. If the Jury were unable to accept the case for the prosecution, and on the contrary accepted the defence as above set out, it followed that in the absence of the sanction of the Governor-General in Council the prosecution could not be continued and the accused were entitled to an acquittal. Only if the Jury negatived both the case for the prosecution and the case for the defence, was it necessary for them to consider the further questions then arising, namely, whether the appellants acted in the exercise of the right of private defence and whether they had or had not exceeded that right.
7. No such instructions were given to the Jury and we have, therefore, to consider whether we should direst a re trial.
8. Now from the verdict of the Jury and the agreement of the Judge therein it is clear that the Sessions Judge and Jury accepted the case for the prosecution. It is not so clear that the Jury accepted the primary defence, but from the observations to be found at pages 64 to 69 of the charge it would seem that the Judge did, though he failed to appreciate the necessary result. In this connection we may also refer to the first complaint of Abdul Karim, and the depositions and statements of prosecution witnesses Meher, Anwari Mia and Bhubon Mohan Banerji. We next find that when discussing the special charges under Sections 302 and 301 against Ablul Rahim and against Benode Bandhu under Section 326, the learned Judge stated to the Jury that the accused only admitted an offence under Section 324, and again repreated the statement of an admission when dealing specially with the case of Abdul Rahim. It may be that the Sessions Judge intended to say that the accused admitted the doing of the Act which, unless justified in the lawful exercise of the right of private defence, would constitute the offence punishable under Section 321. But there was no admission by either appellant of the commission of any offence, and the instruction given by the Judge in the terms actually used was gravely misleading. Having regard to all the circumstances of the case and the long period of time that has now elapsed, we are of opinion that by directing are-trial no useful purpose will be served. We, therefore, set aside the conviction of, and the sentences passed upon, the appellants and direst that their bail-bonds be now discharged.
9. In conclusion we should point out to the learned Judge that to take the witnesses one by one in the order of their examination and to place their disconnected statements before the Jury is not in general very helpful. More assistance will be derived by the Jury from a careful collocation of the evidence, as it bears on the several allegations of the respective parties. We may further aid that to road to the Jury the exposition of the law of England re the use of military force to be found in paragraphs 100 to 103 of the 2nd Edition of Mayne's commentaries could only serve to confuse the Jury and to distract their attention from the facts with which they had to deal in the present case.