JUDGMENT 1. This case comes before us on a reference made by the learned Additional Sessions Judge of Mymensingh under the provisions of sec. 374, Cr. P. C., and also on appeal by the accused. The accused was tried before the learned Additional Sessions Judge with the aid of a jury on two charges : first of all, with having murdered one Jamir Sheikh, and, secondly, with voluntarily causing hurt by a cutting instrument to one Kocha. The present case is one that has caused us considerable anxiety, because the accused was undefended before the learned Sessions Judge. That is a course which ought not to be adopted in cases where the accused is tried on a capital charge. There has been a practice long established and well recognised that when an accused appears before the Judge on a capital charge, the Judge is accustomed to request a member of the Bar who practises before him to undertake the defence of the accused. That obligation has, so far as I am aware, always been recognised by the profession who always have willingly undertaken the defence of the accused so charged at the request of the presiding Judge. However, the learned Judge in the present case did not appoint or request any member of the profession to conduct the defence of the accused, the result being that the case has been tried practically ex parte and the difficulties that appear on the evidence have not been cleared up in the course of the cross-examination either by the accused himself or by the learned Judge. The evidence as it stands on the record is such that we are unable to confirm the sentence passed on the accused. What the points of difficulty transparent to any person who has any knowledge of the value of evidence are, it is not our duty to state at present, nor do we think it right that at the present moment we shall enumerate which are the points that have pressed upon us. The only question is what ought we to do in the present circumstances. If the story relied upon by the prosecution be true, an exceedingly cruel murder has been perpetrated and public safety requires that, if possible, the person who has perpetrated that murder should be brought to justice. Sec. 376, cl. (b), Cr. The only question is what ought we to do in the present circumstances. If the story relied upon by the prosecution be true, an exceedingly cruel murder has been perpetrated and public safety requires that, if possible, the person who has perpetrated that murder should be brought to justice. Sec. 376, cl. (b), Cr. P.C., gives us jurisdiction to order a new trial on the same or an amended charge. That being so, we consider that, in this case, we are bound to send the case back to the learned Judge with a direction that the accused be re-tried on the same charges that have already been framed against him and we would request the learned Judge to see that, in the new trial, some gentleman represents the accused before him. We, therefore, decline to confirm the sentence of death passed on the accused and send the case back to the learned Judge for the accused being re-tried.