1. In this case, the two appellants before the Court were convicted by a jury by a majority of 5 to 4. They were accused of having caused the death of one Abul Hossein otherwise called Munser Bap and the charge against them was one under Section 302 read with Section 34, I.P.C. The case, in effect, is that the deceased man together with one Mahomed Jan who lived in his house as a servant went from his own village to another village called Kaichipore, that these two men were returning in the evening and just after sunset, they were met by the two appellants, that after a word or two of conversation what happened was that Samiuddin--the second appellant--struck Abul Hossein on or about his shoulder with an instrument which looked like a ruler and knocked him down on the road and that thereupon Jahur--the first appellant--made after Mahomed Jan, the servant, with a dao and the servant ran home to his own village and meeting certain persons there told them what had happened. It appears that near to the scene of occurrence there were a good many houses of different people--some of whom appear to have been tenants of the deceased man. These people were not alarmed and they were not told anything about the matter at the time: but Muhamed Jan went back to his village and there, according to him, after having told his story, he was so overcome that he retired to bed in a state of unconsciousness. The first information report was given late in the night of the 30th of May, that is to say, the day of the occurrence and it was given by the deceased man's brother Faizuddin.
2. Now, what happened in this case, in effect, was that the jury were almost evenly divided. Four of them thought that the accused should be acquitted: five brought in a verdict of guilty under Section 302 read with Section 34, I.P.C. The learned Judge states that personally he should have given the accused the benefit of the doubt; but he says also that the verdict of the majority of the jury is not perverse or unwarranted by the evidence. In order to justify a reference under Section 307, Criminal P.C., it is not necessary that the Judge should be able to describe the jury's finding as perverse. The language of that section is reasonably plain and may be adhered to. No translation or substitution of other phrase is necessary. In the present case the learned Judge says that the verdict of the majority of the jury is not unwarranted by the evidence and he was quite within his rights in not making a reference to this Court under Section 307, Criminal P.C. The result is that this verdict is one with which we can only interfere provided that there has been a misdirection on a point of law or that the jury have misunderstood the law as laid down to them.
3. Now, it was pointed out to us at the opening of this appeal that the learned Judge had not explained to the jury the difference between murder and culpable homicide. He has not said a single word about culpable homicide and the way in which he left the matter to the jury is, in effect, this: He has carefully described to them the effect of Section 34, I.P.C., and he has said that the jury ought to be satisfied in order to convict the accused that the two accused persons caused the death of Abul Hossein with a common intention either of causing his death or of causing such injury to him as they knew was likely to cause his death. That is all that the learned Judge has said. He has given the jury another direction, namely, that if they find that there was a common intention of causing grievous hurt, then the verdict which they should give against both the accused is one of guilty under Section 326, I.P.C. But he has said nothing whatever by way of direction to the jury about any other possibility lying between murder on the one hand and grievous hurt on the other.
4. It is said on behalf of the Crown that in this case when one looks at the facts any question of the jury finding one or the other of the exceptions mentioned in Section 300, I.P.C., is entirely academic and it is said that, in view of Section 537, Criminal P.C., in any case, the verdict should not be interfered with by reason of this omission. Now, if may or may not be the law of this Court that, in every case of murder, all the exceptions mentioned in Section 300, I.P.C., have to be dealt with by the Judge in his charge: but it is quite certain that the mere fact that the accused persons do not admit that they were there and raise a case of provocation or of that of passion or something of that sort does not render it unnecessary to give the jury a proper direction as to the exceptions. The question is whether on any reasonable view of the facts, certain of the exceptions can matter. If they can matter and if a proper direction is not given to the jury then it is not open to the Court to guess and gamble as to whether or not the jury's verdict would have been different.
5. Now, what has happened in this case is that, according to the story for the prosecution, the last thing that was seen as regards Abul Hossein is that one of the two prisoners struck him with a stick which looked like a ruler and knocked him down. The jury might very well have been asked to consider whether, assuming they found that the accused had something to do with the death of the deceased, the circumstances on the whole would lead them to think that it was a sudden affray or whether it was a cold-blooded or premediated murder after the manner which the prosecution evidence would indicate. Looking at the matter carefully. I am not of opinion that we can say either that the jury had sufficient direction upon this vital point in this particular case or that the insufficiency has led to no injustice. In my judgment, the trial must be dealt with on the footing that the learned Judge has not given a sufficient direction to the jury.
6. Now, the learned Judge himself took the view that the correct verdict in this case on the facts would be that it was not proved that the accused had committed any offence whatever. We have had our attention called to the evidence of the main witness and the only eyewitness and we have had our attention called also to the evidence of those people who gay that the names of the accused were mentioned to them directly after Mahomed Jan had got back to his own village and to the evidence of people who say that the two accused were seen on or about that evening in the neighbourhood of the occurrence. There are a great many observations that have to be made tending to discount the correctness or the truth of the story told by the eyewitness and I for myself have no hesitation in saying that, whatever the truth be as to the way in which Abul Hossein met his death, it is reasonably clear, in my opinion, that upon this evidence the verdict of guilty is not the safe verdict. The learned Judge was of that opinion and four of the persons also expressed the same view. It does not seem to me that, if this case is re-tried, there is a chance of the accused being rightly convicted, that is to say, that there is a chance of the evidence being such that the jury can safely and properly convict them. It is unnecessary and undesirable that these men should be put on their trial again.
7. Under our powers given by Section 423 of the Code I would reverse the finding and sentence and acquit and discharge both the accused without any further trial.