Lancelot Sanderson, C.J.
1. This is a Reference under Section 307 of the Criminal Procedure Code by the Second Additional Sessions Judge of Dacca in a case in which two persons, Manindra Kumar Sen and Profulla Kumar Mazumdar were charged with murder. The name of the man who is alleged to have been murdered was Mukunda Lal Goon, and I do not suppose that any one who has read the evidence in this case, has any doubt that Mukunda Lal Goon was, in fact, murdered. The Jury were unanimous in their verdict which runs as follows:
We think Manindra not guilty: but we think there is a doubt in the case of Profulla, and that he should get the benefit of the doubt.
2. The learned Judge accepted the unanimous verdict of the Jury that Manindra was not guilty: he found that this accused was not guilty and he directed him to be acquitted and released from custody.
3. With regard to Profulla, the learned Judge disagreed with the verdict of the Jury, and referred the case for the decision of the High Court under Section 307 of the Criminal Procedure Code. The Letter of Reference sets out the reasons which actuated the learned Judge to refer this matter to the High Court, and he stated the offence of which be considered Profulla to be guilty, viz., under Section 302/34, of the Indian Penal Code.
4. Mukunda was stabbed in the neck and when assistance came to him, he as asserted that he had been stabbed by two men, whom he pointed out, and who were at that time running away. The two men were pursued. One of them was caught and taken into custody. This was Profulla whose case is the subject of this Reference. The case of Manindra turned to a large extent upon the question of identification, and the learned Judge, in a charge which is conspicuous for its clearness and fairness, dealt with the evidence relating to this question, and I gather from his charge that the reason why he accepted the verdict, of the Jury as to Manindra was that the learned Judge, having regard to the evidence as to the identification of Manindra, could not say that the verdict was unreasonable.
5. In his Letter of Reference the learned Judge dealt with the verdict of the Jury with regard to Profulla as follows: 'The Jury were unanimous that there is not sufficient evidence to find profulla Kumar Mazumdar guilty under Section 302 without the aid of Section 34. This, verdict too I accept, though I do not agree with it. But the Jury also found unanimously that there was a doubt that accused 302/34 Profulla was guilty under section I am clearly of opinion that it is necessary for the ends of justice to refer the case. I have the honour to submit the records for the orders of the High Court under Section 307 of the Criminal Procedure Code.' A later passage in the Reference is as follows: 'Through, I personally am satisfied that Profulla, accused, struck the fatal blow, I can accept the Jury's verdict that there is a doubt on the matter.' I understand the learned Judge to mean that, although he himself was set aside that Profulla was the man who struck the blow, the Jury evidently had a doubt on the matter, and that he was not able to say that, that doubt was unreasonable; consequently, he could accept the verdict of the Jury as to that part of the case. He then went on to say, 'But the Jury also held that there is a reasonable doubt that the to youths acted in furtherance of a common intention. This I consider perverse. To my mind the admitted circumstances are wholly inconsistent with the view that either of the two youths could be ignorant of his companion's intention.' He then set out the reasons for that conclusion; and continued,' I am of opinion that accused Profulla is clearly guilty under Section 302/34, of the Indian Penal Code, and the verdict of the Jury, is perverse due to reluctance to find any one guilty of a capital crime.'
6. The learned Counsel for the Crown contended that, having regard to the form in which the verdict regarding Profulla Kumar Mazumdar was given, and to the fact that the learned Judge recorded his disagreement with it and referred the case under Section 307 of the Criminal Procedure Code, it was open to this Court to examine the evidence and to hold that it was Profulla Kumar Mazumdar who stabbed the deceased man. But we must have regard to the letter of Reference, and it is clear therefrom that the learned Judge accepted the Jury's verdict as to this part of the case. That being so, in my judgment, we ought not to consider that question on this Reference. It is not necessary for me to decide the question whether upon this Reference we have jurisdiction under Section 307 of the Code of Criminal Procedure to enter upon the enquiry as to whether the accused Profulla did strike the fatal blow, because, having regard to the terms of the letter of Reference, I am clearly of opinion that we ought not to do so. The Jury found that there was a doubt whether Profulla struck the blow and the learned Judge has clearly accepted the verdict of the Jury on that part of the case. Consequently, in my judgment, this Court ought not to enter upon the consideration of the question involved in that part of the case.
7. The only question we have to decide on this Reference is whether the learned Judge was right in his conclusion, that the admitted circumstances were wholly inconsistent with the view that either of the two youths could be ignorant of his companion's intention, and we have to consider that part of the case upon the assumption that one of the two men, who were present, struck, the fatal blow and on the further assumption that it is not proved which of the two men struck the fatal blow. The learned Judge with respect to this part of the case directed the Jury as follows: 'By Section 34 of the Indian Penal Code when a criminal act is done by several persons, in furtherance of the common intention of all, each of the persons is liable for that act in the same manner as if it were done by him alone. If, therefore, the man who accompanied the stabber had a common intention with the stabber, viz., the causing the death of Mukunda, then such companion is liable for the stabbing as if he had actually stabbed,' and he concluded his charge to the Jury as follows: 'If you are of opinion that the two men had a common object in view, viz., to cause the death of Mukunda, then both are equally guilty. If, however, you are of opinion from the evidence and circumstances that one of the two might reasonably have been ignorant of his companion's intention then only the man who struck the fatal blow can be found guilty: and if supposing that you are of opinion that one of the two men only is guilty, and you are unable to decide which of them struck the fatal blow, then it is your duty to find both not guilty.'
8. Here, in my judgment, arises a difficulty. Assuming that this Court has to approach the case on the basis that it is not proved which of the two men stabbed the deceased man and that one of them only undoubtedly did, I have considerable doubt whether the provisions of Section 34 arc applicable. It must be remembered that Section 34 does not create an offence. The provisions thereof merely lay down a rule of law. The meaning of that section was considered by Mr. Justice Stephen in the case of Emperor v. Nirmal Kanta Roy 24 Ind. Cas. 340 : 41 C. 1072 : 18 C.W.N 723 : 15 Cr.L.J. 460, and I need rot do more than to refer, for my present purpose, to the decision of the learned Judge in that case. The deceased man was killed by one blow with the dagger, which was left sticking in his neck. The defence of the accused, Profulla Kumar Mazumdar, was that the fatal blow was struck by the man who was with him; it seems to me, therefore, that the charge which should have been preferred against the accused as an alternative to the main charge under Section 302 of the Indian Penal Code was a charge under Section 302 read with Section 114 of the Penal Code.
9. The learned Vakil for the accused has argued that the accused was not charged under Section 114 with abetment, and that he cannot now be convicted by this Court under Section 114, inasmuch as the charge was not framed against him in the Trial Court. We are of opinion that we must accede to that argument. The result is that we accept the Reference to this extent that we direct that this case he remanded in order that the accused Profulla Kumar may further be placed upon his trial. We desire to make it clear, however, that, inasmuch as the Jury have given a verdict in his favour upon the question whether Profulla struck the fatal blow, and the learned Judge has clearly accepted that verdict we do not consider it right that he should be put upon his trial in respect of that part of the case again. It may be said that, strictly speaking, inasmuch as the learned Judge has not registered an acquittal in respect of Profulla, he could be tried again on the basis that it was he who stated the deceased man. In our judgment, however, it would not be right, for the reasons already stated to put Profulla Kumar Mazumdar on his trial again in respect of that, matter. Consequently, we direct that the further trial be con fired to a charge under sect on 302 combined with Section 114 of the Indian Penal Code.
10. I conclude my judgment by saying that I do not feel that the course which we are directing is altogether a satisfactory one, but no other option is left to us by reason of the way in which the matter has been referred to us by the learned Judge. The learned Judge, apparently, was satisfied that Profulla had struck the fatal blow, and it night have been better if he had referred the whole case against Profulla to this Court, instead of dividing the verdict of the Jury in the manner in which he did, and accepting part and disagreeing with part. At the same time, we desire to express our recognition of the great care with which the learned Judge dealt with the case, which was by no means free from difficulty.
11. The result, therefore, is that the case must be sent down to the lower Court for re-trial in the limited way which I have indicated.
12. I agree.