JUDGMENT 1. The five Appellants have been put on their trial along with two others who have not appealed on one charge under sec. 396, I. P. C., of committing dacoity with murder of one Kamaluddi and his son Abdul Majid at a place between Kachupatra and Keshabpur on or about the 22nd Pous 1329 (January 6th, 1923). They were tried by the 2nd Additional Sessions Judge of Backerganj with a jury and were unanimously found guilty and sentenced Mafizuddi to seven years' rigorous imprisonment, Hoshanali to three years' rigorous imprisonment and the other three to 4 years' rigorous imprisonment on the 16th June 1925. It appears there were previous trials which were set aside by this Court. The facts of the case according to the prosecution are as follows : Kamaluddi, an inhabitant of Keshabpur, bad certain paddy lands at Kachupatra. He engaged 13 reapers including the present Appellants to reap his paddy and the 13 reapers, who were apparently people unknown to him before, came in two big boats at the beginning of Agrahayan and settle on the land and during Agrahayan and Pous reaped his and some other people's paddy for them--the terms of their remuneration being that they were to get either 1/8th or 1/10th share of the produce--(the evidence on this point is discrepant) for their services. They completed their work. On the 6th January after night-fall eleven of the reapers (two staying behind) stated back with 160 maunds of paddy without being paid for their service, in two boats with Kamaluddi and Abdul Majid to take the paddy to Keshabpur Kamaluddi had a small (dingi) boat which was lashed to one of the two reapers' boats. Since that date Kamaluddi and Abdul Majid have not been seen again, nor has their dingi boat. These eleven reapers their own homes, which are in a village in the Dacca District, shortly before the end of Pous, and there is evidence to show that they then unloaded the paddy of their two boats and took it by the help of packponies to their headman's (Mofizuddi, Appellant No. 3) house. 2. The evidence further shows that when Kamaluddi and his son Abdul Majid left Keshabpur on the 6th January with the eleven reapers he left behind him besides the two other reapers another son of his, Abdul Karim, the complainant in this case. 2. The evidence further shows that when Kamaluddi and his son Abdul Majid left Keshabpur on the 6th January with the eleven reapers he left behind him besides the two other reapers another son of his, Abdul Karim, the complainant in this case. The evening after left, some co-villagers of his arrived at Keshabpur and told him his father and brother had not reached home when they left. He then went to call the other two reapers who had been left behind and found they had disappeared leaving certain articles of little value behind them. He then started at once for home and found his father and brother were not there. He searched various waterways and then sent information to the thana and himself reported to the Sub-Divisional Officer of Patuakhali on the 13th January that his father was missing. Enquiries were made and it was found the 11 reapers had arrived safely at their house with paddy. The defence is that Kamaluddi and his son did not go away from Kachupatra with the eleven reapers at all. The reapers went home with their share of the paddy, a share to which they were entitled, after finishing their work in Kachupatra. 3. In the present trial a nolle prosequi was entered against one of the reapers and he was called as a witness for the prosecution. He has given evidence but has supported the defence version. 4. Whatever may have been the charges at the previous trials (the case was originally instituted under secs. 864 and 407, I. P. C.) we are only concerned here with the charge of dacoity with murder. 5. The verdict of the jury and the charge of the Additional Sessions Judge are assailed on two points :-- (1)The direct evidence as to how much paddy the reapers actually had with them on their arrival home, i.e., whether they had more than what was their proper remuneration for their work is unreliable and the Judge has misdirected the jury on the point. (2)There being no direct evidence of either dacoity or murder the Judge has failed to direct the jury as to what is sufficient circumstantial evidence on which to justify a conviction. Indeed there was no jury at all on a charge under sec. 396. 6. (2)There being no direct evidence of either dacoity or murder the Judge has failed to direct the jury as to what is sufficient circumstantial evidence on which to justify a conviction. Indeed there was no jury at all on a charge under sec. 396. 6. As to (1) the evidence as to how much paddy was due to the reapers for their is most meager ; they were entitled to a share not only of but of the other crops they reaped and the evidence of how much paddy the actually had in their boat on their home is that only of two of the owners of pack-ponies. Whatever else the evidence shows, it does not prove what amount of paddy reached the reapers' house. We have only a rough guess at the most that can be deduced from the evidence of these two witnesses. 7. The second point however is the more important. If the complainant is to believed (and the jury apparently believed him) Kamaluddi and his son undoubtedly left Kachupatra in the reapers' boat and were never seen alive again. The two reapers left behind mysteriously disapeared. There is therefore ground for suspicion, but is there anything more? 8. Circumstantial evidence, in order to bring a charge home to an accused person, must be such within all human probability the ad alleged must have been done by the accused persons. Here the utmost proved is that, the two presumably deceased persona went away from Kachupatra with the accused on a windy night in accused their own free will, having their own boat in attendance, and were never seen again, it is impossible to say from this that they Were murdered; they may have got into their own boat and been drowned ; they may have fallen out of the boat of the and been drowned; anyway there is no conclusive evidence that any of the reapers caused their death. There is then no evidence of murder. Equally too there is no evidence of dacoity (robbery with violence); the offence of dacoity assumes, that the reapers not being in possession of the paddy by violence seized it. There is then no evidence of murder. Equally too there is no evidence of dacoity (robbery with violence); the offence of dacoity assumes, that the reapers not being in possession of the paddy by violence seized it. The complainant himself says they took the paddy into then boats; he says it was his father's paddy but admittedly part was the share of the reapers who had out paddy for him and there is nothing be show that the rest was not the paddy earned for cutting the crop from the other people for whom they worked at Kachupatra. 9. The learned Deputy Legal Remembrnacer has admitted that there is difficulty in supporting the finding of the jury which to our mind is due to the fact that the meaning of circumstantial evidence sufficient for conviction, in the absence of direct we cannot find a minor offence such ad criminal misappropriation or breach of trust committed. 10. We are unable to accede to his request. In previous trials these unfortunate reapers, who have now been off and on before the Court for nearly three years, were tried on various charges. A last effect has apparently been made to get them convicted by getting one of their number to give evidence on a new charge, not as an approver, but as an ordinary witness. This has failed and we must say that if this witness had supported the prosecution at this late stage we should have held his evidence of little value. 11. In the result we find there is absolutely no evidence to substantiate the charges and acquit the present Appellants. Two persons have not appealed--on them the sentences are two years' imprisonment. We are precluded from passing any orders in respect of them but in view of our judgment (a copy of which will be sent to the Legal Remembrancer forthwith) leave it to the Local Government to act under sec. 401, Cr. P. C., if so advised. We cannot close this case without two remarks. The re-trial on the present charge was only justified if the approver witness supported the case. He should have been examined at an early stage and when he failed to support the prosecution case (we have little reasons to disbelive him) the case should have been withdrawn. It is also difficult to harmonise the sentences with the findings of the jury on the charges. He should have been examined at an early stage and when he failed to support the prosecution case (we have little reasons to disbelive him) the case should have been withdrawn. It is also difficult to harmonise the sentences with the findings of the jury on the charges. Murder is murder and if a Judge accepts a finding of murder there are only two penalties. He has no right to pass inadequate sentences. If he does not believe the verdict is right it is his duty to refer it to this Court. Let the Appellants be released at once.