KASEM ALI Vs. KING-EMPEROR

JUDGEMENT

(1.) This is an appeal by one Kasem Ali who was tried before a jury in the Court of the Sessions Judge of Bakerganj and convicted and sentenced under Section 120-B, I.P.C.

(2.) The facts of the case may be stated briefly in view of the circumstances under which we consider it necessary to interfere with the conviction and sentence of the accused. The facts are shortly these : It would appear according to the prosecution that there was ill-feeling on the part of the accused Kasem towards Kagal Sardar his uncle the deceased on account of Kagal wishing to sell his properties and so deprive the accused Kasem of them, by reason of a misunderstanding that had arisen between them. The accused Kasem was living in the same bari as his uncle and the case is that on the 10 February 1926 the deceased Kagal Sardar whose murder is the subject of one of the charges, was sleeping in the eastern hut while his wife Sherjan Bibi slept in the western hut. One Jamila the wife of the accused Kasem Ali slept in the southern hut. The case for the prosecution was that the accused Kasem Ali himself was not in the house that night but he had gone to Barisal. On the following morning it was discovered by Jamila, otherwise called Kuti, that both Kagal Sardar and his wife Sherjan Bibi were lying dead in their huts. The evidence shows that the death of both was due to strangulation.

(3.) The two accused namely one Elemaddi and the present appellant Kasem Ali were put on their trial in the Sessions Court on the following charges the character of which will be referred to hereafter. The charge against Elemaddi was one of a criminal conspiracy under Section 120-B, to commit the murder of Kagal Sardar and his wife Sherjan Bibi another charge against the same accused was under Section 302, I.P.C. in respect of the murder of Kagal Sardar. The charge against Kasem Ali the present appellant was only under Section 120-B, I.P.C. The verdict of the, jury as against Elemaddi was one of guilty, by a majority of 3 to 4, of the charge under Section 120-B, I.P.C. and of not guilty on the charge under Section 302, I.P.C. As against Kasem Ali the present appellant the verdict was one of guilty of the charge under Section 120-B, I.P.C. by a majority of 3 to 4. In consequence of the verdict of guilty against Elemaddi of the charge under Section 120-B the Sessions Judge was not satisfied with the propriety of it and. he made a reference under Section 307, Criminal P.C. to this Court and the ground of the reference was that there was no proper corroboration of the evidence of one Menajuddi who was called as a witness for the Crown and that therefore the conviction under Section 120-B, I.P.C. was not proper in his case. Apparently his view was upheld and Elemaddi on that reference was acquitted; in respect of the charge under Section 120-B, I.P.C. The effect of this is this-that the present appellant was "left convicted of an offence under Section 120-B, I.P.C. and it is against this conviction that he has preferred the present appeal.