EKABBAR MONDAL Vs. EMPEROR

JUDGEMENT

(1.) These two appeals arise out of a poisoning case which was tried before a Judge and a jury at Bogra. There were six persons on their trial before the Court; one of them by name Ekabbar Mondal was on his trial for murder and conspiracy to murder; the remainder were merely on their trial for conspiracy to murder. And it may be noted that one of those who were charged with conspiracy alone was a woman. The result of the trial was that accused 3, who is appellant 1 here, was convicted both of murder and conspiracy to murder, and accused 1, who is appellant 2 here, was convicted of conspiracy to murder. The remainder were acquitted. Both appellants 1 and 2 were sentenced to transportation for life.

(2.) It may be observed that the procedure adopted by the learned Judge in handling the case, quite apart from the materials contained in his summing up, was a faulty one. The verdicts which were given in the individual cases were all the verdicts of the jury. It was in accordance with law that he should take the verdict of the jury in the case of murder. But under the puzzling and, to my mind, the artificial application of Section 269, Criminal P.C., faced with the position that he was trying a combined case of murder and conspiracy to murder, he ought to have treated the jury on all charges, apart from the actual murder, as assessors. He ought to have taken their opinions aft assessors individually with regard to the conspiracy charges but he did not do so. This combined procedure had been deprecated on more than one occasion in this Court, and as my learned brother points out, it is not at all necessary. By a stroke, to use my learned brother's expression, of the Government pen it is possible under the Criminal Procedure Code to alter the trial of conspiracy in a mixed murder and conspiracy case to one in which the jury functions as jury in both aspects of the case.

(3.) Another awkward position which has been created in this particular case is that if the learned Judge has taken the opinions of the persons sitting with him as assessors, and not their verdict as jurymen, there would have been, as far as the accused in the conspiracy part of the case were concerned, an appeal on facts, but as he did not do so, although there are rulings to the effect that such a procedure ought not to penalize the accused, no doubt, on an equitable basis, it is not quite certain whether they are permitted to have an appeal on the facts and law. So far as the two particular appellants are concerned, we are satisfied for reasons that I shall proceed to give that it would not be safe to uphold either of these convictions owing to the manner in which the learned Judge handled his jury.