KAILASH CHANDRA RISHI Vs. EMPEROR

JUDGEMENT

(1.) The prosecution case is that the two appellants Kailash and Saman with three others seized and carried off Modhu Sudhan Rishi in a boat on the 2 November, last at about 8 30 p. m. at Brahmanbaria and thereafter robbed and murdered him. The appellants have been convicted under Section 396, Indian Penal Code and sentenced to death and also under Section 120-B, Indian Penal Code and under Section 364, Indian Penal Code. The learned Counsel for the Grown admits that in two respects this trial has been defective. In the first place evidence of bad character and of previous convictions has been admitted contrary to Section 54 of the Evidence Act, and secondly, the examination of the accused under Section 342, Criminal Procedure Code goes beyond the scope of that section being in the nature of a cross-examination.

(2.) On the first of these grounds this case would in any case have to go back for re-trial inasmuch as the learned Judge failed to warn the Jurors that they should exclude this part of the evidence from their minds and not allow themselves to be influenced by the accused Kailash's admission of previous convictions for theft, or by the statement of the approver that the accused used to go about together committing thefts and burglary and this evidence may have influenced the Jury adversely to the accused.

(3.) It remains, however, to consider whether in the circumstances of the present case a re- trial should be ordered.