JUDGMENT

Stephen, J. - The accused in this case has been indicted under five counts. These are, first, the murder of Nripendra Nath Ghose under Sections 302 and 34 of the Penal Code; secondly, murder of the same man under Sections 114 and 302 of the Code; thirdly, abetting the murder of the same man under Sections 109 and 302 of the Code; fourthly, the murder of Ananta Teli; fifthly, culpable homicide of Ananta Teli. To these charges he pleaded "not guilty." I told the jury that there was no evidence of an offence under the first count, and they acquitted him accordingly. The jury differed as to his guilt under the second and third charges and there were not as many as six who agreed in opinion. The jury unanimously acquitted him of murder under the fourth charge, and differed as to the fifth charge, without six agreeing in opinion, I accordingly discharged the Jury u/s 305 of the Criminal Procedure Code.

2. The accused was then tried again in accordance with Section 308 of the Code; and as he wished to raise a defence u/s 403, I allowed him to be charged and to plead again, though I doubted if this were necessary or had any legal effect.

3. To every remaining charge of the indictment, that is, to the second, third and fifth he pleaded "not guilty", and that he had been previously acquitted, care being taken that he should make the two pleas at the same time.

4. The points that have been argued on his behalf are that, as he was acquitted of the charge of murder of Ananta, he cannot be tried again for committing culpable homicide on him; that, as he has been acquitted of an offence u/s 302 read with s.34 in relation to the murder of Nripendra, he cannot be convicted of an offence in relation to the same man u/s 302 read with s.109 or s.114; that, as I told the jury that if they believed the facts related as to the killing of Ananta, 1 did not see how they could convict the accused of any offence less than murder, the jurors had no right to convict him of any less offence and consequently those of the jurors who considered him guilty of culpable homicide ought to have found him "not guilty", in which case there would have been a unanimous verdict of "not guilty."

5. For reasons I shall state in a moment, I do not consider that it is necessary to refer this matter in any way to the jury: but in case my opinion as to this should be dissented from hereafter, I propose to take a verdict on the plea relating to a previous acquittal though, as there are no facts for them to decide I shall tell them that, as a matter of law, they are bound to return a verdict that the plea is not made out.

6. The first point depends, and in my opinion depends solely, on the construction to be put on Section 403 of the Criminal Procedure Code. This provides that a person who has once been tried for an offence and acquitted, 'shall not be liable to be tried again for the same offence, nor, on the same facts, for any other offence for which a different charge from the one made against him might have been made u/s 236, or for which he might have been convicted u/s 237". By Section 236 "if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences." By Section 237" if in the case mentioned in Section 236, the accused is charged with one offence and it appears in evidence that he committed a different offence, for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it." I am of opinion that Section 235, dealing with acts in a series so connected together as to form one transaction, has no application to the present case; consequently neither