P L D 1958 Dacca 499 (PLP)

9. Section 423 (2) of the Code of Criminal Procedure lays down "Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such a verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him". It is not disputed before this Court that in the circumstances of the present case, the only charge which could be made against the appellant was under section 302, P. P. C. and the learned Judge actually framed a charge as against the appellant under section 302, P. P. C., and he has acquitted him of that charge on the unanimous verdict of the jury. In the case of Jinnat Ali and another v. The King (53 C W N (1 D R ) 169), decided by Ellis and Amiruddin Ahmed, JJ., their Lordships have held "In order to establish a charge of abduction in order to murder, when the case is one of abduction by deceitful means, it is not enough for the prosecution merely to prove certain circumstances under which the abducted person was induced to go, nor even to prove a mere misrepresentation. The pro secution must prove that there was a misrepresentation, that that particular misrepresentation was the result of a plan to murder and that it was one by which the abducted person was himself deceived and was induced to go ". Their Lordships referred to a previous decision of the Calcutta High Court in the case of Abdul Gafur Khan v. The Emperor (41 C W N 287) which also lays down exactly the above proposition of law :‑ " In order to establish a charge of abduction in order to murder when the case is one of abduction by deceitful means, it is not enough for the prosecution merely to prove certain circumstances under which the abducted person was induced to go, nor even to prove a mere misrepresentation. They must prove that there was a misrepresentation, that that particular misrepresentation was the result of a plan to murder and that it was one by which the abducted person was himself deceived and was induced to go. In a charge to the jury, charges of murder and abduction to murder should be kept distinct and the evidence bearing on each should be separately summed up ". At page 287, His Lordship Henderson, J., who delivered the judg ment of the Bench, observed " I am, however, bound to say that in my opinion a verdict can only be regarded as perverse, which refuses to accept that evidence and yet convicts on the minor charge on the extremely flimsy materials which the prosecution brought to bear upon it ". At page 288, His Lordship again observed that the prosecution would have to satisfy the jury that the murder was the result of a plan conceived beforehand . . . . . . The prosecution never even attempted to produce any evidence to show the existence ... of party misrepresentation and there was, in fact, no evidence to support this particular charge. In the next para graph. His Lordship observed: Then again, in putting the two charges before the jury, the learned Judge did not keep them sufficiently distinct. There were several circumstances which were of the utmost importance with regard to the charge of murder, but entirely irrelevant on this subsidiary question whether as a preliminary to murder there was an abduction. If the learned Judge had summed up the evidence separately on both the charges, I very much doubt, whether the jury would have brought in this verdict ". (In this case also the accused was charged for murder and abduc tion for murder under section 364, P. P. C. and he was acquitted of the charge of murder. In the next paragraph, His Lordship made the observation which I have quoted, in the case reported in 53 C W N (1 D R) 169, their Lordships discussed the evidence and came to the conclusion that there was in fact no evidence at all which could be placed before the jury in support of the prosecution case of abduction and, as such, allowed the appeal and set aside the conviction and sentence of the appellant. This Court has consistently taken the view that when the dead body is' found following the alleged abduction, the only charge that can be' framed is one for the murder or for the abetment of the A commission of the murder, and there can be no charge under section 364, P. P. C. Curiously enough, in this case, the learned Judge framed two charges, one under section 302 and another under section 364, P. P. C., as against the appellant. The charge as against the appellant under section 302 was to the effect that the accused did commit murder of the deceased by intentionally or knowingly causing his death and he also framed another charge as against the same accused that in order that the deceased might be murdered or so disposed of as 'to be put in danger of being murdered, he committed the offence of abduction punishable under section 364 of the Penal Code. The law which should apply to the facts of the case was not explained to the jury at all. The learned Sessions Judge only explained the ingredients of the offence under section 364 to the jury but did not tell them in what circum stances the charge under section 302 would be competent and in what circumstances the charge under section 364 could be maintained. It is, therefore, clear that the jury completely misunderstood the law applicable to the facts of the case and, as a result, came to an erroneous verdict.

10. Secondly, the learned Judge's summing up of the charge to the jury was hopeless. It has been pointed out in the case of Elahi Baksha alias Elahi Baksha Mondal and others v. The Crown (7 D L R 358), in which myself was a party, that what was required of the Sessions Judge was not to give a synopsis of the evidence of witnesses examined by the prosecution but the duty of the learned Judge is to sum tip the evidence before the jury. In the case to which I have just referred, it appeared "from the charge that the learned Assistant Sessions Judge read out the evidence of the witnesses beginning from P. W. 1 upto the end. He did not collect together the facts relevant to any particular point for the understanding of the jurors. He did not even discuss the evidence as regards each of the accused individually though twice he asked the jurors to con sider the case of each of the accused persons separately. It is impossible to say that the method adopted by him has not caused miscarriage of justice in this case". At pages 360‑361, Ibrahim, J., who delivered the judgment of the Bench, further observed :‑ " In cases tried by jury, when the case for the defence and the prosecutor's reply, if any, are concluded, the Court shall proceed to charge the jury summing up the evidence for the prosecution and the defence, and laying down the law by which the jury are to be guided. A mere reading out of the deposition of the witnesses beginning from that of P. W. 1 to the end does not satisfy the requirements of this section. What is required is the summing up of the evidence of the prosecution and of the defence. My idea of summing up is that the Sessions Judge should piece together all facts relevant to each vital point and present them in an intelligible manner to the jury. That is a more difficult method but that is the method contemplated by law and must be followed ". In our present case also, the learned Judge has given a synopsis of the evidence of P. Ws. 1 to 17 before the jury. Before that, he explained the law but he did not discuss the evidence and the law with reference to the facts which the prosecution must prove in order that they can succeed under section 364, P. P. C. The learned Judge after reading out the evidence of the different witnesses examined by the prosecution refers to the arguments of the Public Prosecutor and the defence lawyer and leaves it to the jury whether they will accept the prose cution case or the defence case and said: " On a consideration of all these facts, circumstances and various suggestions of the defence and of the prosecution and the arguments of the learned lawyers of both sides, if you are fully satisfied and be morally certain and if you find the circumstances to be strong enough to clearly and reasonably pointing to the complicity and guilt of the accused as being reasonably incompatible with their innocence and if you find that accused Sher Ali really committed the murder of the deceased Moslem under a pre-mediated plan and that accused Eradali Mondal, accused Abdul Kader Mondal, accused Ebadat Ali Biswas, accused Atorali Mondal, accused Ahmad Khan and accused Ketabdi Mondal really abetted the com mission of the said offence of murder by accused Sher Ali who in consequence of such abetment committed the murder of Moslem, then and then only you may find accused Sher Ali to be guilty under section 302, P. P. C. for the offence of murder and accused Eradali Mondal, accused Abdul Kader Mondal, accused Ebadat Ali Biswas, Atorali Mondal, accused Ahmad Khan and accused Ketabdi Mondal to be guilty under sections 302/109, P. P. C., for abetment of the said offence. If you are not so satisfied or if you have any reasonable doubt as to their complicity and participation or of any of them, then you will find them or him to be not guilty of the offence as charged against each of them ". Then the learned Judge in a paragraph states " As regards the alternative charge under section 364, P. P. C., if on a consideration of the evidence and circum stances you are fully satisfied beyond shadow of reasonable doubt that accused Sher Ali actually abetted the deceased Moselm that he might be murdered or might be so disposed of as to be put in danger of being murdered, then and then only you may find accused Sher Ali to be guilty under section 364, P. P. C. If you are not so satisfied or if you have any reasonable doubt as to the complicity and participation, then you will find him not guilty tinder section 364, P. P. C." It was not a case of an alternative charge but it was a case where an additional charge under section 364 was framed against the accused. It is this procedure that has been condemned in the case reported in 53 C W N (1 D R)

169. The learned Judges pointed out in that case that the charges of murder and abduction for murder should be kept distinct and the C evidence bearing on each should be separately summed up‑1 The learned Judge has failed to do that and we have no doubt that on account of this wrong procedure followed by the learned Judge, the jury were misled, and returned a verdict which leas entirely erroneous.

11. In a case under section 364, P. P. C., it is necessary that the prosecution must prove not only that there was a misrepresentation but they must also prove that this misrepre sentation was in furtherance of a plan to murder. The prosecution no doubt examined several witnesses in that connection: They are P. W. 6 Hakmat kli Sheikh P. W. 7 Toakkal Mondal, P. W. 8 Abed . Ali Mondal and P. W. 10 Afser Molla. All these witnesses proved that there was a conspiracy before the deceased was actually called by the accused Sher Ali. It is also in evidence in this case that the deceased was a man of the party of the accused and he had no dispute with the accused. This vital fact was not placed before the jury in connection with the charge under section 364, P. P. C. Now P. W. 6 Hekmat has deposed in this case that he saw the deceased Moslem and accused going towards Noapara. He had no talk with any of them. It was admitted by P. W. 6 that they had no light with them and the persons whom he met on the way had no light and it was a dark night and in the following morning he came to know of the murder of Moslem. He did not, however, go to see the dead body of Moslem. According to P. W. 6, he reported that fact to one Abul Hossain Biswas, a member of the U. B. and he also disclosed that fact to Erad Ali, Halaluddin and others also about 7/8 days after the murder of Moslem. All those persons do not come to corroborate P. W.

6. This witness was examined by the Daroga about one month after the occurrence. He did not disclose this fact before 7/8 days to Erad Ali and Halaluddin and others. There is practically no explanation for this delay. He says that he was not at home. So he did not state‑ to the police that he saw the accused persons along with Moslem on the way in the night of occurrence. P. W. 7 Toakkel Mondal stated that he saw the accused in the out‑house of accused Sher Ali holding a meeting in low voice and he heard some of the accused saying that Moslem was to be finished within a day or two and who was to bring Moslem from Paikpara and the accused Ahmad said that Sher Ali would bring Moslem and that Sher Ali said that he would bring him. This witness had no dispute with the deceased Moslem but curiously enough he did not disclose what he heard to Moslem, or his wife or to Abul Hossain, a member of the U. B. Furthermore, he has stated that he was away for fear of police and cause when he knew that he had not been named in the F. I. R. He came home more than two months after the occurrence. The occurrence took place on 3/4th August, 1956, and the witness was not examined till 10‑9‑

56. P. W. 8 Abed Ali Mondal has also stated that he overheard accused Erad Ali saying that Moslem had to be finished and that he also over‑heard accused Ketabdi asking as to who would go to bring Moslem and to this accused Ahmed said that accused Sher Ali would bring him from Paikpara. This witness was examined by the police on 24‑9‑

56. What the accused Ahmed stated as against the accused Sher Ali would be a statement by one accused as against his co‑accused and the learned Judge did not warn the jury that that evidence was worthless so far as the accused was concerned. P. W. 10 Afsar Molla is a man of the same village of the deceased and he stated that he went to the house of Sher Ali at about breakfast time on the 13th Sraban last and he saw accused Sher Ali, Ebadat, Abdul Kader, Atar and Ketabdi, He overheard them saying in low voice that anyhow they must finish the job and thereafter they dispersed from the place. This witness was examined by the police on 12‑10‑

56. In cross‑examination he has admitted that he did not report what he had heard to the wife of Moslem or to Moslem and he further admits that he does not know of any dispute between Moslem and accused Sher Ali and admitted that Moslem belonged to the party of Sher Ali. These serious improbabilities in the case should have been placed before the jury while the Judge summed up the charge under section 364 as against the accused. One striking fact to be found is that the 6 other accused in this case were charged for abetment of the offence of murder and have been unanimously found not guilty by the jury and certainly the jury did not believe the evidence of the witnesses discussed above who deposed before the Court that all these accused were in conspiracy and doing things facilitating the commission of the offence. We see that if these facts were properly placed before the jury in connection with the charge under section 364, P. P. C., the verdict would have been otherwise.

12. The learned Advocate appearing for the appellant has argued before this Court that the witnesses, P. Ws. 6, 7, 8 and 10, were of the nature of accomplice witnesses and the learned Judge should have warned the jury that they should not believe their evidence except where there was an independent corrobo ration. He has in that connection referred us to case of Eradu and others v. State of Hyderabad (P L D 1956 S C (Ind.) 286). Of course the facts of that case are not similar with our present case. There the witness was present when the alleged murder was committed and he did not make any attempt to prevent the offence being com mitted. In our present case, of course witnesses, P. Ws. 6, 7, 8 and 10, spoke of a conspiracy to murder the deceased but there is one striking fact that these witnesses did not take any steps for preventing the offence or they did not com municate the facts which they had heard either to the deceased or to his wife. Mr. Sayem has stated that thereby the witnesses facilitated the commission of the,offence. If they did not facili tate the commission of the offence, at least they did not stop the crime being committed. Whether they are accomplice witnesses or not, this is a matter affecting the credibility of these witnesses and the jury should have been warned accordingly.

13. The learned Judge again, instead of explaining the bare section 364, P. P. C. and their requirements as noted in the commentary of Ratanlal, should have discussed these ingredients with reference to the facts of the case and he should have pieced together the facts and probabilities relevant to the vital points at issue and present them in an intelligible manner to the jury.

14. In our opinion, there is no worthwhile evidence to go before the jury so far as the charge under section 364 is con cerned as against the appellant.

15. We, therefore, hold that the learned Judge clearly mis directed himself in his charge to the jury and the verdict of the jury was entirely erroneous and the erroneous verdict was due to the misdirection and also to the misunderstanding of the law. The result, therefore, is that the appeal succeeds and we set aside the conviction and sentence of the appellant and direct that he be set at liberty without any undue delay, if he is not wanted in any other connection. SATTAR, J.‑I agree. A. H. Appeal accepted.