JUDGMENT

L.S. Jackson, J. - I think the objection taken by the vakeel for the prisoners in this case must prevail. The objection is that the Judge in his direction to the Jury has drawn their attention to a certain paper which was put in as evidence for the prosecution, and which purported to be a written statement on the part of the two prisoners and other persons, That statement the Judge has adverted to in these words: "The prosecutor has put in a written statement filed in the Sadder Munsif's Court, on 20th April 1868, which is verified at foot by Gajraj under his own hand. The verification for Anigri is under another hand. The date of the statement is the 20th, and it is engrossed on two stamps, one purchased on the 13th, and one on the 18th." If the written statement was drawn up on an earlier date than the date it bears, it could not have been prepared earlier than the day on which the principal stamp was bought, i.e., the 18th. This document was apparently relied upon by the prosecution as an answer to evidence adduced on the part of the prisoners to prove an alibi; namely, that the prisoners on and for some time before the date of the murder, had been far away from Patna, that is to say, at Port Canning, in the neighbourhood of Calcutta. The murder took place on the 30th May, and the case made for the prisoners was, that they had left Patna on the 5th Baisakh, and reached Port Canning on the 25th Baisakh. Those dates correspond with the 12th and 22nd April, 1868. Now the way in which this document was put in, was that a person named Fenzal Huq, who describes himself as a moharir of the Sadder Munsif's Court, appeared at the trial, and gave evidence in these words: "This written statement of Ram Tohel Sing, Rang Lal Sing, Gajraj Sing, Pratap Sing, Anigri Sing, and Gandowri Sing, was filed by Munshi Durga Charan, on the 20th April 1868, and is dated the same day. The stamps appear to have been purchased on the 13th and 18th April, as shown by the stamp vendor's endorsements. The statement bears the verification of the defendants."

2. It is quite clear that nothing that is in evidence in any degree connected this written statement with the prisoners. The Judge therefore, if he drew the attention of the Jury to this document at all, which he ought not to have done, and ought not to have received it, should have pointed out, in the first place, that there was nothing to show that it had been signed by Gajraj, or had been signed by any body on behalf of and at the desire of Anigri the other prisoner; but chat, also supposing it to have been so signed and presented, it would be quite consistent with the prisoners being, as they alleged, at Port Canning on the 22nd April. They might have signed this document on the 18th, and could very well have been at Port Canning on the 22nd April; and even supposing that they had not arrived at Port Canning on the 22nd April, that would not be to my mind a very material contradiction of their statement that they had been at Port Canning for a considerable time before the murder took place. I think it is impossible to say that the production of this document in evidence, and the terms in which the Judge has referred to it in his direction, have not produced a serious effect on the mind of the Jurors and contributed materially towards their finding; the prisoners guilty. I think therefore that we are bound to use the power given to us by section 399 of the Code of Criminal Procedure and annul this conviction, and order a new trial of the prisoners upon the charges exhibited against them.

Markby, J.

I am of the same opinion.