1. This is an appeal from the judgment and the sentence of the learned Sessions Judge of Khulna who, agreeing with the unanimous verdict of the Jury, convicted one Jamiruddi of an offence under Section 326, and sentenced him to five years' rigorous imprisonment, and they further unanimously found three persons, Samiruddi, Kalam and Afizuddi, guilty under Section 326, read with Section 114, and Afizuddi further under Section 323. Afizuddi was given four years under Section 326, read with Section 114, and four months under Section 323, the sentences to run concurrently. The other two, Samiruddi and Kalam, were given three years each under Section 326 read with Section 114.
2. Now, we have considered the charge to the Jury and we find that the only point of misdirection is with regard to the law of abetment by conspiracy and that only applies to appellants Nos. 2, 3 and 4.
3. The conviction of Jamiruddi is a right conviction and it is not based on any misdirection. We, therefore, have no power to alter it or interfere with it nor do we desire to do so. The appeal of Jamiruddi is dismissed.
4. A question might arise as to whether the Jury had seisin of the case as a whole or whether they tried each prisoner personally and it appears clear that they took oath to try well and truly the case as between the Crown and the prisoner and they are not like the Judge in charge of the entire case as a whole. They have to give their verdict on the facts as against each man severally, and in this case, curiously enough, there is an instance of the converse of the proposition we have just laid down.
5. The man Afizuddi has been convicted under Section 326, read with Section 114, and under Section 323. Now, it is quite possible that the verdict of the Jury under Section 323 is correct and was not obtained by any misdirection but, because the man Afizuddi is to be re-tried, he must be placed before the Jury upon all the charges which were framed against him and we should have no jurisdiction to uphold the conviction under Section 323 and to order him to be re-tried under Section 326. The whole of his case must go back to the Jury if the verdict was obtained by misdirection.
6. Now, it is perfectly clear that the verdict of the Jury under Section 326, read with Section 114, was obtained by misdirection. The learned Judge seems to have entirely misunderstood the law as applicable to the facts of this case. He says that there is evidence that these four persons conspired, or three persons Nos. 2, 3 and 4 conspired with No. 1, Jamiruddi, to eject the complainant from his land, or in other words, to commit criminal trespass, and he says that if the Jury found that these three men conspired with the first accused to commit criminal trespass then they would, if absent, be guilty of abetment, and being present they are guilty of the substantive offence; but unfortunately he has omitted to notice that the substantive offence of which he told the Jury they were guilty is not one of criminal trespass but of voluntarily causing grievous hurt, which on his own showing has nothing whatever to do with the alleged conspiracy. It is perfectly clear that these persons could not be convicted of abetting the causing of grievous hurt by their presence, because they would have been guilty of abetment had they been absent, when the evidence against them is that they themselves came with the accused No. 1 and joined in beating the deceased. It is because the evidence is that they joined in beating the deceased that we think there must be a re-trial, and it is by reason of Section 34, Indian Penal Code, that they would be held liable if it be found that they all joined in the beating; and the specific act which caused the grievous hurt is not brought home to any particular individual, or they would be liable under Section 326, read with Section 109, if they aided and abetted or abetted by intentionally aiding Jamiruddi in beating the deceased; or for any wound which any individual himself caused he would be guilty under the section of simple hurt or grievous hurt, according to the nature of the injury he himself inflicted, but they cannot be convicted of grievous hurt by reason of conspiracy to commit criminal trespass.
7. The conviction and sentence passed on Samiruddi, Kalam and Afizuddi must be set aside and they will be admitted to bail to the satisfaction of the District Magistrate pending their re-trial before another Jury.