DWARIKA MALO Vs. EMPEROR

JUDGEMENT

(1.) This is a reference by the Additional Sessions Judge of Dacca under Section 374, Criminal P.C. submitting for confirmation the proceedings in a case under Section 302, I.P.C. in which sentence of death has been passed upon the accused. The accused Dwarika Malo has also appealed against his conviction and sentence.

(2.) A preliminary point has been raised on behalf of the appellant that the jury, before which the case was tried was not properly or legally constituted, and that as a consequence the conviction and sentience are bad in law. We think that this contention is well founded and must prevail.

(3.) The sections of the Code which bear upon the point are Secs.274 and 326 of the Code. Section 274 lays down that in trials before the Court of Sessions the Jury shall consist of such uneven number, not being less than five, or more than nine, as the Local Government, by order applicable to any particular district, or to any particular class of offences in that district, may direct and the proviso to this section, which was added by Act 12 of 1923, states that where any accused person is charged with an offence punishable with death, the jury shall consist of not less then seven persons and, if practicable, of nine persons.