The court emphasized that they cannot examine the facts for themselves to decide whether the appellants are guilty or not, and therefore, they are not going to inflict a sentence of death.

JUDGMENT

Henderson, J. - This is an appeal from the jail. It was admitted by the learned Judges presiding over the undefended Bench. The appellants were convicted of murder. The learned Judges issued a rule calling upon them to show cause why they should not be sentenced to death. As are suit Mr. Mukherjee appeared on behalf of the appellants at the request of the Crown. I will deal with the Rule first. The prosecution case is really very simple. The deceased was a Naib. The two appellants attacked him in a boat armed with deadly weapons and inflicted serious injuries on him, as a result of which he died. The motive alleged was that the deceased had been helping the police to investigate a case u/s 110, Criminal P.C. against the two appellants. Now we entirely agree that this is a case in which a sentence of death ought to have been passed. The murder was a brutal and cold-blooded one. There were no extenuating circumstances of any sort and the reasons given by the learned Judge for not inflicting the death sentence do not commend themselves to us.

2. The position however is as usual very difficult from the practical point of view. As at present advised we accept the law as laid down by Costello and M.C. Ghose JJ. in Alef Shaikh v. Emperor (1935) 62 Cal. 952 and in Maharaj Bahadur Singh Vs. Narmada Charan Banerji, AIR 1934 Cal 405 . The effect of those decisions is that we cannot examine the facts for ourselves to decide whether the appellants are guilty or not. Being placed in that position we are certainly not going to inflict a sentence of death. The result of the failure of the learned Judge to do his duty in this case was that the appellants are precluded from asking us to examine the evidence in the case to see whether we are ourselves satisfied of their guilt. It would be an intolerable position if in such circumstances they were to be sentenced to death. We shall not therefore interfere with their sentences. In dealing with the appeal we have merely to consider whether the jury were misled by the charge delivered by the learned Judge. We have been through it and also through most of the evidence. There is nothing to which exception can be taken in the way in which he dealt with the law applying to the case. It might not perhaps be impossible to deal with the evidence in a more systematic way. But in our opinion there are only two matters which require comment.

3. The prosecution called evidence to show that inquiries were going on against the appellants and that the deceased was helping the police in the investigation. As it was the prosecution case that this provided the motive for the murder, it could not be said that this evidence was inadmissible. The learned Judge did not specifically warn the jury that this could not be used as evidence of bad character. However he' dealt with it as evidence of motive and I can only suppose, the jury understood that it was introduced for that purpose, and for that purpose only. In fact there is no evidence to the effect that the appellants were actually of bad character. The other matter relates to the dying declaration. My learned brother pointed out at the hearing that the way in which the learned Judge dealt with this was not very logical. It is to be noted that the deceased was the person who actually gave the first information report and that the learned Judge said this:

If the deceased is tutored to file the first information report, as is suggested, no question of. tutoring arises in the case of the dying declaration.

4. Of course if the deceased was tutored to file the first information report, the dying declaration, which is a mere repetition of it, was also due to tutoring. But I imagine the learned Judge was dealing with an argument that had been addressed to the jury to the effect that the deceased had been specifically tutored for the purpose of making that dying declaration. After all Judges in their charges have to deal with the actual points that are raised at the tria