Proper jury instructions and the correct interpretation of legal provisions, especially Section 34, Penal Code, are crucial in cases based on circumstantial evidence.

JUDGMENT

Sen, J. - Panchkari Sheikh and his two sons Mujjaffar Sheikh and Saifer Sheikh were tried for the murder of one Abdul Rashid by the Sessions Judge of Birbhum and a special jury. By a unanimous verdict the jury found Panchkari not guilty and by a majority of five to four, they found Mujjaffar Sheikh and Saifer Sheikh guilty of committing murder. The learned Judge accepting the verdict of the jury, acquitted Panchkari and sentenced Mujaffar and Saifer to death; he has referred the case to us for confirmation of the sentence. Mujjaffar and Saifer have appealed. The case for the prosecution, briefly is as follows: Panchkari and his two sons Mujjaffar and Saifer were on bad terms with the deceased Abdul Rashid who is the son of Panchkari's sister. About six months before the murder, the three accused were sent up on a charge of theft and Abdul Eashid helped the police against them. This led to further ill-feeling between the parties. On 2nd November 1939, Rashid lodged an information at the thana complaining that the three accused persons and one Nabuat had been threatening him with bodily harm. On 16th January 1940 in the morning there was a salis regarding a dispute between Panchkari and his brother Ekrar, over a wall. At this salis Rashid and his brother attended and there Panchkari said that both the brothers should not be allowed to take part in the salis and threatened them saying that they should be "removed from this world."

2. On the same day Rashid left the Cooperative Bank at Rampurhat where he works at about 5-15 P. M., with one Mir Najim Ali. They were returning home after their work. They first went to a cloth shop where Rashid purchased some cloth and thereafter departed-Rashid going homeward to his village of Binodepur on a bicycle. He was seen by some persons riding towards the village. Now, to go to his village from Rampurhat one must pass a culvert called Hiranbandi culvert. Rashid was last seen at about 5-40 p. M. by one Roshan Ali, P. W. l0 riding on his bicycle about a mile from the culvert. On that day at about 6 P. M. certain persons saw a bicycle lying on the embankment near the culvert about 80 cubits away. They also saw the appellants and another man who looked like Panchkari near about this place. Nothing further was seen of Rashid or of his bicycle on that day. On the next morning at about 7 A. M., certain persons walking along the road saw a corpse in a ditch near the culvert and this corpse was that of Rashid. Nearby there was a bicycle and near the bicycle was the blade of a clasp knife. Later on in the ditch the brass handle of this knife was found. The police were informed, they came on the scene and took charge of the corpse and after investigation sent up the appellants and Panchkari for trial on a charge of murder. The medical evidence shows that death was due to a punctured wound 31/2 x 1" on the neck. The wound penetrated deep down to the thyroid cartilage and the carotod artery was cut. There were other injuries on the face, forearm and finger. The case against the appellants rests entirely upon circumstantial evidence. I propose to set forth the main incriminating facts upon which the prosecution depends. They may be stated thus:

(a) There was ill-feeling between the parties and on 16th January 1940, there was a threat by Panchkari that the deceased should be "removed from this world." This threat is spoken to by the brother of the deceased Abdul Hamid, P. W. 13. Abdul Kader, P. W. 18 also speaks to the fact that Panchkari or Saifer spoke in a threatening manner but his evidence does not corroborate that of Abdul Hamid regarding the actual words used. (b) The presence of Mujjaffar and Saifer and a person who looked like Panchkari near about the culvert on 16th January 1940, at about 6-15 p. M. This fact is spoken to by Kumarish Let, P. W. 2, Gopal Bannerjee, P. W. 20, Upendra Muchi, P. W. 25, Mokram Hossain, P. W. 26 and Kasim Sheikh, P. W. 27. The evidence is that Mujjaffar was loiter