The main legal point established in the judgment is the strict interpretation of the admissibility of evidence, particularly joint statements, under S. 27, Evidence Act, and the requirement for clear evidence of individual actions in cases of constructive liability under S. 34, Penal Code.

JUDGMENT

Sharpe, J. - This Reference case No. 9 of 1945 and the connected Appeal No. 616 of 1945 preferred by Abdul Kader, as well as the jail appeals preferred by Abdul Kader, Fazil Bepari and Kalu Mia have been heard together. All the appellants have been found guilty under S. 302, Penal Code by the unanimous verdict of the jury and sentenced to death by the learned Sessions Judge of Rajshahi. Each of the appellants has also been found guilty under S. 120B/302, Penal Code and in addition Fazil and Kalu have been found guilty under S. 201, Penal Code by the unanimous verdict of the jury and they have been convicted under those sections, but no separate sentences have been imposed, because of the sentences of death, imposed for the major offence, which have been referred to this Court for confirmation.

2. The prosecution case and evidence are briefly as follows : On Thursday, 2nd November 1944, Aniruddin, Vice - President of the Lakshipur Kholabaria Union Board, was called from his house about 9 A. M. by a man who was at first unknown but who subsequently transpired to be Ramjan Sardar, Chonkidar, P. W. 7. He did not return that evening or the following day so his son, Hossain P. W. 1, began to make enquiries, but without any success. On the Saturday, he continued his enquiries at the hat and there met the President of the Union Board, Abdur Rahim, who advised him to give information at the thana that his father was missing, but without mentioning any one as suspected in that connection. Accordingly, on Sunday, 5th November, Hossain went to the thana and lodged information that his father was missing and that he did not suspect any foul play. On the following Tuesday, however, Amiruddin Bepari, P. W. 4, father-in-law of Hossain, was sent for by Kader Pramanik, P. W. 9. Kader informed him that he had learnt from his brother-in-law Kalu Haldar, P. W. 10, that Fazil Bepari, who lived in his house, had told him that he (Fazil), Abdul Kader and Kalu Mia had murdered Aniruddin at the instigation of Abdur Rahim, President, Union Board, who had promised them Rs. 1000 as a reward. Amiraddin communicated this information to Hossain and asked him to search the jungle of Diara Saturia where the murder was said to have been committed. He himself proceeded to the thana on 8th November, and, he says, told the Sub-Inspector Barhanuddin Shaikh, P. W. 31 what he had heard. No note of this information was however made in the station diary. The Sub-Inspector came to the locality on the evening of 9th November, and apparently was then shown some blood marks and saw marks of struggle near a bamboo grove where the murder was supposed to have been committed. Next day he again visited that place and examined some witnesses, including Amiruddin Bepari and Kalu Haldar from whom information about the commission of the murder had been received. Thereafter Fazil and Kalu were produced in custody and on 11th November, apparently they made certain statements to the Sub-Inspector. In pursuance of those statements, according to the prosecution, Fazil and Kalu took the Sub-Inspector who was accompanied by a number of witnesses, including P. Ws. l, 3, 4, 20, 24 and 25 to the bamboo grove where the blood marks had been found. Then they took the Sub-Inspector and his party to a place in a Khasia field about a mile away where, they stated, they had cut the dead body into pieces on a piece of wood. A piece of wood, Ex. 7 with marks of cutting and blood was found at this place and also some small pieces of bone (EX.8) and a piece of string (Ex. 9) which Hossain identified as having been worn by his father round his waist. Next Fazil and Kalu stated that they had thrown the fragments of the body into the river, and took the party to a place on the river bank where they further said they had buried the clothes of the deceased. They dug up this place and produced a dhuti (Ex. 12), a shirt (Ex. 18) and a fatwa (Ex. 14) all of which were identified by Hossain and his mother