SHEIKH ABDUL Vs. EMPEROR

JUDGEMENT

(1.) The three accused before us have been convicted by a unanimous verdict of a Jury. The first accused has been sentenced to ten years rigorous imprisonment under Section 364 and accused Nos. 2 and 3 to seven years rigorous imprisonment each under Section 120-B read with Section 364. They were convicted under other sections to which I shall presently refer but no separate sentence has been passed in respect of the convictions under the other sections. Now the accused were all charged originally with offences under Section 120-B and with rioting under Section 147. They were further charged under Section 302 and also under Section 364 read with Section 34 that is to say, with abduction for the purpose of murder. Accused No. 1 was further charged under Section 302 read with Section 34 and accused No. 3 was further charged under Section 323, The Jury unanimously found all the accused not guilty under Section 120-B read with Section 302 and also not guilty under Section 302 read with Section 149. They further found accused No. 1 not guilty under Section 302 read with Section 34 and accused Nos. 2 and 3 not guilty under Section 364 read with Section 34. All the three accused, however, were found guilty under Section 120-B read with Section 364, although they were not charged with these particular offences. They were all further found guilty under Section 147 and the first accused was found guilty under Section 364 and the third accused guilty under Section 323.

(2.) Now nine points have been urged before us on behalf of the accused. First, it is said that they have been convicted in respect of a charge under Section 120-B read with Section 364 with which they were not in fact charged. Secondly, it is said that so far as accused No. 1 is concerned who has been convicted under Section 364, the Judge has erred in the general form of his charge to the Jury under this section and it is said that he should have applied to the facts of this case the provisions of Section 364 and it is suggested that because be has failed to do so the Jury have misunderstood the law it being urged that upon the evidence there is nothing to support the charge of abduction to murder. The third point is that the learned Judge failed to direct the jury that there was no evidence to support either the charge under Section 364 or under Section 364 read with Section 120-B. Fourthly, we were referred to certain passages at pages 8 and 10 of the copy of the charge which is before me as showing misdirection. I will refer to the passages later. Fifthly, it is said that as the common object of murder which was one of the common objects charged has failed by reason of the acquittal of the accused under the sections to which we have referred and by reason of the other common object of abduction not being established by the evidence, the conviction under Section 147 cannot stand. The seventh point is that, all the important witnesses are interested persons and related to the deceased man Prosanna. The eighth point is misdirection with regard to the first information given by Sahadali. The ninth and the last point is the alleged misdirection as to the opportunities of Chandra Kanta and Sahadali to identify the three accused who are the appellants before us. The main point really is with regard to the conviction under Section 364 of the first accused and the conviction of accused Nos. 2 and 3 under Section 120-B read with Section 364. It is true that the accused were not charged under these sections under which they have been convicted and sentenced and if we thought from the perusal of the charge as a whole that the accused have been prejudiced by the fact that they have been convicted on charges which had not been framed against them, we would have been forced to set aside the conviction and direct a re-trial. But we think that it was open to the Jury to convict as they did under these two sections and we think too that the accused have not really been prejudiced by what has happened.

(3.) Now the facts are shortly as follows:- Prosanna the man who met his death was generally unpopular in the neighbourhood both with the zemindars because of the location of a certain ghat and with tenants of his, because he is said to have been unduly strict with regard to his exaction of rent. It is said that Prosanna had for some 10 or 15 years before the date of the occurrence never failed to be accompanied by a guard. On the night of the occurrence he was returning from a market where he had been doing business in respect of the despatched of betel nuts. It was late at night, sometime about 11 o clock when Prosanna was proceeding along a pathway, with his nephew Chandra Kumar leading and carrying a lantern and the guard armed with a lathi, following behind. While so proceeding the party were attacked, Prosanna was first attacked and Chandra Kumar and Sahadali apparently made off. In a tobacco field close by subsequently were found stains of blood and a trail was found leading from there to the river or to the neighbourhood of the river where ultimately the body of Prosanna was found with a picther fastened round his neck. Now it seems to us that the Jury were not satisfied upon the evidence before them that Prosanna met his death in the tobacco field where blood was found and accordingly with this in their minds they formed the conclusion that Prosanna met his death not there but at or near the river where his body was found and consequently they came to the conclusion that Prosanna was abducted from the tobacco field, to which he had been taken from the pathway to the river and that he there met his death and that this is the reason why they have convicted under Section 364 and accused Nos. 2 and 3 under Section 120-B read with Section 364.