JUDGMENT

Lort-Williams, J. - This case is probably unique in the annals'of crime. On 4th December 1933, Amarendra Chandra Pandey died in Calcutta. It is alleged that he died of plague, the germs of which had been injected into his arm by some person, who has not yet been discovered, on Howrah station on the 26th November. The two appellants Benoyendra Chandra Pande and Taranath Bhattacharjee along with Durga Ratan Dhar and Sivapada Bhattacharjee and others unknown were charged with conspiring to murder Amarendra in pursuance of which conspiracy Amarendra was murdered in the manner alleged. Benoyendra was charged also with abetment of murder and Sivapada was charged also with offences under Sub-section 201 and 202, I. P. C. Benoyendra and Taranath were found guilty by a unanimous verdict of the offences with which they were charged and were convicted and sentenced to death. Durga Ratan Dhar and Sivapada Bhattacharjee were found not guilty and acquitted. Benoyendra and Taranath have appealed on the ground of misdirection and illegal admission of evidence. We have to consider these two appeals and a reference u/s 374, Criminal P. C. Benoyendra and Amarendra were half-brothers and members of the Pakur Raj family and jointly inherited their father's estate in 1929. At that time Benoyendra was 27 and Amarendra 16 years old. They were also joint reversionary heirs of their aunt Rani Surjabati. Benoyendra became the Karta of the family on his father's death, and pursued a course of life which, rightly or wrongly, offended and outraged the family, including Surjabati and Amarendra. They considered that he was extravagant, and objected to his relations with a dancing girl named Balikabala, and to his failure to provide money adequate for the suitable upkeep and education of Amarendra.

2. This friction between Benoyendra and the rest of the family gradually increased, especially with Amarendra, who was advised by Surjabati and his relatives Rabindra Nath Pandey and Baidya Nath Pandey. Its existence has been denied by Benoyendra, but it is fully confirmed by documentary evidence of undoubted authenticity. In 1931 Amarendra attained his majority, and in 1932 he began to take definite steps to assert his rights in the joint estate, and in open opposition to Benoyendra. On the 12th May he executed a several power of attorney in favour of persons who could not be controlled by Benoyendra, though he was subsequently induced by Benoyendra's threats and promises to cancel it on the 6th July. These facts and the growing friction between the brothers are confirmed in a series of letters which passed between them, in which also for the first time the question of partition was openly mooted. During the Puja vacation of 1932, Amarendra was staying with Surjabati at Deoghar. One day Benoyendra came there accompanied by a compounder. He and Amarendra went for a walk together, after which. Benoyendra and the compounder departed. A few days after Amarendra began to be ill and his illness was diagnosed by Dr. Sourendra Nath Mukherjee as being due to tetanus infection, which he treated with injections of anti-tetanus serum. A telegram was sent to Benoyendra at Pakur to bring the family physician. He brought instead the appellant, Taranath, a doctor from Calcutta, and wanted Dr. Sourendra to keep Dr. Taranath as his assistant. Dr. Sourendra refused because he got the impression that Dr. Taranath was trying to induce him to abandon the serum treatment in favour of injections of morphia.

3. Subsequently, Benoyendra appeared again, this time with Dr. Dhar, who persuaded Dr. Sourendra reluctantly to give a further injection of serum he had brought from Calcutta, and later still Benoyendra came again with both Dr. Dhar and Dr. Sivapada who prescribed medicines for the patient. These however were not given to him because his relatives were by this time suspicious about both Benoyendra and the doctors who were brought by him. Subsequently, Amarendra developed an absc