P.B.Mukharji, J. - (1.) We have heard this Appeal and Reference together.
(2.) The appellant Sankar Kumar Dutta alias Haran Dutta, a police constable, was charged under Section 302 of the Indian Penal Code for committing four murders by causing the death of (1) his wife Pusparani Dutta, (2) his eldest son aged about five years, (3) his second son aged about three years and (4) his youngest female child aged only a few months. He was unanimously found guilty by the jury. The learned Sessions Judge of Nadia in accepting that verdict and sentencing him to death said: "The accused has committed a most heinous offence which was premeditated and preconceived one. He has most brutally murdered three of his children and his wife too. All of them must have been duped to leave their house and to go to that secluded place little knowing what was in store for them. This accused did not spare his own children who were so helpless nor he spared his own wife who so much depended on him The acts of this accused will remain written in black in the history of criminology citing an example how brutal and knave a human being could be and to show how this accused could be-have more brutally than even the most ferocious beasts of the jungle. A culprit who acts in such a dastardly manner deserves no mercy and I think extreme penalty of law will be the only appropriate punishment". 2a. Naturally, against this background and on the records before us we have given Our most anxious time and consideration to the very important point raised on behalf of the appellant that the trial in this case was by a court, corum non-judice. The only argument advance before us is that a juror out of nine jurors who tried this case, and which juror was by the name Amarendra Nath Chatterjee and whose number was 69 was a signatory to the inquest report in this case. Therefore, it is contended that he was not a proper juror, that he was a biased and partial member of the jury and so his presence vitiated the whole constitution of the court which included the jury in this case.
(3.) This objection was never taken either when the jurors were empanelled or when objections to the individual jurors were allowed or oven at any stage, during the whole course of trial, in fact this objection was never taken on behalf of the appellant until the matter came up before us in appeal and reference and that also at the very last moment when the matter was actually taken up for hearing. It is said that the learned Advocate for the appellant examining the records in the case which have been sent to this Court discovered the fact of this identity between a witness to the inquest report Amarendra Nath Chatterjee and the juror Amarendra Nath Chatterjee.;