ASHRAF ALI Vs. EMPEROR

JUDGEMENT

(1.) In this case the appellant before us has been convicted under Section 302 of the Indian Penal Code and sentenced to transportation for life. The trial was by Jury and in finding the appellant guilty, the learned Judge has agreed, with the majority in their verdict. We have anxiously considered this case and have come to the conclusion that there are defects in the trial which render it necessary to set aside the conviction and sentence and direct a re-trial. In the first place, there is evidence that at the place spoken of as Bharamba the appellant left the boat now in question with the clerk Jogendra at about 6 to 7 P.M. and followed the latter upto Munsihat, a distance of some 1 1/2 to 2 miles from the ghat. It is not clear from the record of the heads of charge that this portion of the evidence was brought specially to the notice of the Jury. At the same time it would seem to be clear that the appellate could be convicted only if the Jury were satisfied that the appellant returned to the boat, and returned in time to take part in causing the disappearance of the peon whose death is in question.

(2.) The second contention urged On behalf of the appellant was based on the non- examination of the second boatman Abdul Majid. On the case for the prosecution the Crown regarded and had reasonable grounds for regarding Abdul Majid as an accomplice. I am unable to read the case of Dhunno Kazi, In the matter of the petition of 8 C. 121 : 10 C.L.R. 151 : 6 Ind. Jur. 251 : 4 Ind. Dec. (N.S.) 77 as an authority for the proposition that the prosecution is required to produce and examine such a witness. But as this person has been examined as an approver on the former trial of the accused Raham Ali, it would doubtless have been more satisfactory if the prosecution had at least secured his attendance, and failing in this, had given detailed evidence of the efforts made in that direction.

(3.) A third matter touched on in the course of argument was the question of the coat said to have been found in the Manjhi Raham Ali s possession. On this point, I find no misdireotion. In my judgment evidence of Raham Ali s conduct in regard to the coat is not admissible against the appellant but the evidence going to show that this coat was found in Raham Ali s possession and identifying the coat as belonging to the deceased is in my view admissible as corroborating the other evidence regarding the identity of the boat.