P (PLP)

ELLIS, J.‑

This is an appeal by two persons, Jinnat Ali, an elderly man of 75, and Baka Ali, his son ‑ of

30. They were convicted under section 364, Indian Penal Code, and each sentenced to transportation for life by the learned Additional Sessions Judge, Bakerganj in agreement with the unanimous verdict of a jury. The material facts may be briefly stated as follows. The appellant, Jinnat Ali used to be the Mridha of the zamindars at the Singia Kulchery in the sub‑division of Pirojpur, Jinnat Ali turned a refractory tenant and accordingly the zamindars dismissed him from service and‑ejected him from the lands which he was holding. In his place the zamindars appointed one Abdul Kader as the Mridha and settled with him the lands which bad been previously in the possession of Jinnat Ali. Jinnat Ali was incensed at his dismissal and dispossession from those lands and threatened revenge. On the afternoon of Thursday January 24th 1946, Abdul Kader went out to realise rent from some Namasudra tenants of the landlord. He passed the doraja of the house of the accused, Jinnat Ali, and Jinnat Ali and his son, Baka Ali, called to him to come into the house for a ‑smoke. Abdul Kader at first was reluctant, but ultimately out of courtesy accepted the, invitation. On the prosecution story he was given a chair to sit on and after he had taken his seat Baka Ali came from behind and pinioned him by means of a gamcha which was thrown round his neck, Abdul Kader was then 'thrown on, the floor and was assaulted by Baka Ali and other persons present in the house. Certain witnesses from outside saw what was happening and attempted to intervene, but, they were chased away. Thereafter the dead body of Abdul Kader was dragged by the accused towards the Baleswar river, and, subsequently .a headless dead body was seen floating in this Baleswar river. The body however was never, recovered, and there is nothing to show that the dead body which was then seen floating was that of Abdul Kader. Abdul Kader, however, never returned home after he had Once set out on the afternoon of January 24th, 1946. Information was given to the police by his son, Sherajuddin, and ultimately the two appellants and eight others appeared in the dock before the learned Additional Sessions Judge of Bakerganj and a jury or a charge under section 302134, P. C. while the two appellants were charged under section 364 of the Code. The learned Additional Sessions judge directed the jury, so far as the charge under section 302/34 was concerned, that in his opinion the safest possible course for them would be to return a verdict of not guilty in favour of all the accused persons. The jury followed this direction and returned a unanimous verdict of not guilty on this charge. The learned Advocate-General, appearing for the Crown, bas candidly conceded that he girds it impossible to support the conviction in this case, and indeed the appeal must be allowed and the conviction and sentences set aside. With regard to the charge under section302/34 we are not concerned. It is unfortunate however that the learned Additional Sessions Judge in dealing with the case as a whole did not separate the charge under section 302/34 from that under "section 364 of the Code. If the learned Additional Sessions Judge will refer to the case of Abdul Goffur Khan v. Emperor, reported in 41 C. W. N. 287 (1) he will there find a case which is exactly parallel to the present case. Their Lordships in the case under report observed that 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. So far as the present case is concerned the learned Additional Sessions judge did to some extent keep the charges, separate, although in his exposition of the law he dealt with diem one after the other. It would be much better had he first of all explained the law under sections 302/34 and discussed the evidence relevant to that charge and then takers, up the charge under section 364, explained the law relating theretoiand discussed the evidence material to this charge. Had he done so he would not, we think, have committed one very grave mistake which he did commit. When he explained the law with regard to the offence under section 364 Penal Code he explained to them that portion of the section which deals with abduction with the‑ intention that the person abducted may her se disposed of as being pit in danger of being murdered. He twice in his discussion of the law. adverted to this particular petition of the law relating to an offence punishable under section 364, and indeed, in the concluding paragraph of his charge to the jury he sent the jury out to consider their verdict with a direction that if they believed that the two appellants abducted the deceased, Abdul Kader, with the guilty intention that he might be murdered, or might be so disposed of as being put in danger of being murdered, then they were to return a. verdict of guilty against them. The point is this that in the charge which was actually framed against the appellants it was charged against them that they abducted Abdul Kader in order that the said Abdul Kader might be murdered. It never was any part of the prosecution case that they .abducted Abdul Kader in order that i.e might be so disposed of as being put in danger of being murdered, and on the facts of this case obviously the learned Additional Sessions Judge committed a grave mistake when he addressed the just in those terms. The same ruling to which reference has already been made is also in point on this question. It was held there: "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." If the principle laid down in this rulings the applied to the present case it is clear that these ingredients of an offence under section 364 cannot possibly be found in this case. The only evidence led by the prosecution in support of this charge was the evidence of two witnesses, P. W. No. 2‑Mohabliat All and P. W. No. 3‑Muhammad Ali. These two witnesses are the only witnesses who speak of the deceased. Abdul Kader, being invited by the two appellants to drop in at their house for a, smoke on tit s way out to collect rents from tire tenants. Their evidence is subject to the disqualification, firstly that Muhammad Ali never made any such statement to the police officer, and secondly, that although Mahabbat Ali claims to gave told the‑ deceased's son of the invitation, Serajuddin never himself mentioned 'it when he lodged the information in the general‑diary before the police at 11‑45 next morning. There was‑ in fact no evidence at all which could be placed before the jury in support of the prosecu tion case of abduction in this manner. The evidence that actually' was led in the case suggesting that Abdul Kader had been killed while he was in the house of appellants, Jinnat Ali and Baka Ali, is the evidence of two witness, Hachan Ali Palwan and Kaloo Faraji. P.Ws. Nos. 8. and 9, to the effect that they had seen the dead body of Abdul Kader being dragged over water hyacinth in the direction of the river, and the evidence of P. W. No. 10‑Mok;eed Ali‑who spoke to having seen a headless corpse floating in the mouth of the river. Although that evidence itself was subject to very serious dis qualification, it might have induced the jury believe that, as a matter of fact, Abdul Kader was placed in such a position when he was invited into the house of Jinnat Ali that he ultras in danger of being murdered. The jury found, as their verdict under; section 302 34 shows, that the prosecution had not been able to establish that Abdul Kadar had actually been murdered. But the direction given to them by the learned Additional Sessions. Judge with regard to his disposal in such a manner that he may be put in danger of being murdered together with the evidence led, on the side of the prosecution touching what is supposed to have: happened in the appellants' house after the deceased had accepted the invitation, may well have induced the jury to believe that there was a case that the deceased, was put in danger of being murdered. In these circumstances we cannot but hold that the manner in which the case was placed before the jury, the way in which the law with regard to sections 302/34 and 364 was not. dis tinguished in the charge to the jury, did lead to an erroneous verdict and a failure of justice. In the result we allow this appeal, set aside the convictions and sentences and direct that the appellants be set at liberty: A. D. AHMAD, J.‑

I agree. M.M.A./A.H. Conviction set aside.