JUDGMENT Ellis, J. - This is an appeal by two persons, Jinnat Ali, an elderly man of 75, and Baka Ali, his son of 30. They were convicted under sec. 364 of the Indian Penal Code and each sentenced to transportation for life by the learned Additional Sessions Judge of Bakerganj in agreement with the unanimous verdict of a jury. The material facts may be briefly stated as follows:--The Appellant Jinnat Ali, used to be the Mridha of the Zemindars at the Singia Cutchery in Sub-Division of Pirojpur. Jinnat Ali turned a refractory tenant and accordingly the Zemindars dismissed him from service and ejected him from the lands which he was holding. In his place the Zemindars appointed one Abdul Kader as the Mridha and settled with him the lands which had been previously been in the possession of Jinnat Ali. Jinnat Ali was incensed at his dismissal and dispossession from those lands and threatened revenge. 2. On the afternoon of Thursday, the 24th January, 1946, Abdul Kader went out to realise rent from some Namasudra tenant; of the landlord. He passed by the deroja of the house of the accused, Jinnat Ali, and Jinnat Ali and his son, Baka Ali called to him to come into the house for a smoke Abdul Kader at first was reluctant, but ultimately out of courtesy accepted the invitation. On the prosecution story he was given a chair to sit on and after he had taken his seat Baka Ali came from behind and pinioned him by means of a gamcha which was thrown round his neck. Abdul Kader was then thrown on the floor and was assaulted by Baka Ali and other persons present in the house. Certain witnesses from outside saw what was happening and attempted to intervene but they were chased away. Thereafter the dead body of Abdul kader was dragged by the accused towards the Baleswar river, and subsequently a headless dead body was seen floating in this Baleswar river. The body however was never recovered, and there is nothing to show that the dead body which was then seen floating was that of Abdul Kader. 3. Abdul Kader however, never returned home a after he had once set out on the afternoon of the 24th January, 1946. Information was given to the police by his son. The body however was never recovered, and there is nothing to show that the dead body which was then seen floating was that of Abdul Kader. 3. Abdul Kader however, never returned home a after he had once set out on the afternoon of the 24th January, 1946. Information was given to the police by his son. Sherajuddin and ultimately the two Appellants and eight others appeared in the dock before the learned Additional Sessions Judge of Bakerganj and a jury on a charge under sec. 302|34 of the Indian Penal Code, while the two Appellants were charged under sec. 364 of the Code. 4. The learned Additional Sessions Judge directed the jury, so far as the charge under sec. 302|34 was concerned that in his opinion the safest possible course for them would be to return a verdict of not guilty in favour of all the accused persons. The jury followed this direction and returned a unanimous verdict of not guilty on this charge. 5. The learned Advocate-General, appearing for the Crown, has candidly conceded that he finds it impossible to support the conviction in this case, and indeed the appeal must be allowed and the conviction and sentences set aside. 6. With regard to the charge under sec. 302|34, we are not concerned. It is unfortunate, however, that the learned Additional Sessions Judge in dealing with the case as a whole did not separate the charge under sec. 302|34 from that under sec. 364 of the Code. If the learned Additional Sessions Judge will refer to the case of Abdul Gafur Khan v. The King-Emperor 41 CWN 287 (1936), he will there find a case which is exactly parallel to the present case. Their Lordships in the case under report observed that in a charge to the jury, charges of murder and abduction to murder should be kept distinct and the evidence bearing on each should be separately summed up. So far as the present case is concerned, the learned Additional Sessions Judge did to some extent keep the charges separate, although in his exposition of the law he dealt with them one after the other. It would be much better had he first of all explained the law under sec. 302|34 and discussed the evidence relevant to that charge and then taken up the charge under sec. It would be much better had he first of all explained the law under sec. 302|34 and discussed the evidence relevant to that charge and then taken up the charge under sec. 364, explained the law relating thereto and discussed the evidence material to this charge. Had he done so he would not, we think, have committed one very grave mistake which he did commit. When he explained the law with regard to the offence under sec. 364 of the Indian Penal Code, he explained to them that portion of the section which deals with abduction with the intention that the person abducted may be so disposed of as being put in danger of being murdered. He, twice in his discussion of the law, adverted to this particular portion of the law relating to an offence punishable under sec. 364, and indeed, in the concluding paragraph of his charge to the jury he sent the jury out to consider their verdict with a direction that if they believed that the two Appellants abducted the deceased, Abdul Kader, with the guilty intention that he might be murdered or might be so disposed of as being put in danger of being murdered, then they were to return a verdict of guilty against them. The point is this that in the charge which was actually framed against the Appellants it was charged against them that they abducted Abdul Kader in order that the said Abdul Kader might be murdered. It never was any part of the prosecution case that they abducted Abdul Kader in order that he might be so disposed of as being put in danger of being murdered, and on the facts of this case obviously the learned Additional Sessions Judge committed a grave mistake when he addressed the jury in these terms. 7. The same ruling to which reference has already been made is also in point on this question. It was held there In order to establish a charge of abduction in order to murder, when the case is one of abduction by deceitful means, it is not enough for the prosecution merely to prove certain circumstances under which the abducted person was induced to go, nor even to prove a mere misrepresentation. It was held there In order to establish a charge of abduction in order to murder, when the case is one of abduction by deceitful means, it is not enough for the prosecution merely to prove certain circumstances under which the abducted person was induced to go, nor even to prove a mere misrepresentation. They must prove that there was a misrepresentation that that particular misrepresentation was the result of a plan to murder and that it was one by which the abducted person was himself deceived and was induced to go." 8. If the principle laid down in this ruling be applied to the present case it is clear that these ingredients of an offence under sec. 364 cannot possibly be found in this case. The only evidence led by the prosecution in support of this charge was the evidence of two witnesses, P. W. 2-- Mahabbat Ali and P. W. 3--Mahammad Ali. These two witnesses are the only witnesses who speak of the deceased, Abdul Kader, being invited by the two Appellants to drop in at their house for a smoke on his way out to collect rents from the tenants. Their evidence is subject to the disqualification, firstly that Muhammad Ali never made any such statement to the police officer and secondly that although Mahabbat Ali claims to have told the deceased's son of the invitation Sherajuddin never himself mentioned it when he lodged the information in the general diary before the police at 11-45 next morning. There was in fact no evidence at all which could be placed before the jury in support of the prosecution case of abduction in this manner. 9. The evidence that actually was led in the case suggesting that Abdul Kader had been killed while he was in the house of Appellants, Jinnat Ali and Baka Ali, is the evidence of two witnesses, Hachan Ali Palwan and Kaloo Faraji, P. Ws. 8 and 9, to the effect that they had seen the dead body of Abdul Kader being dragged over water hyacinth in the direction of the river, and the evidence of P. W. 10--Mokshed Ali-- who spoke to having seen a headless corpse floating in the mouth of the river. 8 and 9, to the effect that they had seen the dead body of Abdul Kader being dragged over water hyacinth in the direction of the river, and the evidence of P. W. 10--Mokshed Ali-- who spoke to having seen a headless corpse floating in the mouth of the river. Al-though that evidence itself Was subject no very serious disqualification, it might have induced the jury to believe that, as a matter of fact, Abdul Kader was placed in such a position when he was invited into the house of Jinnat Ali that he was in danger of being murdered. The jury found, as their verdict under sec. 302|34 shows, that the prosecution had not been able to establish that Abdul Kader had actually been murdered. But the direction given to them by the learned Additional Sessions Judge with regard to his disposal in such a manner that he may be put in danger of being murdered together with the evidence led on the side of the prosecution touching what is supposed to have happened in the Appellants' house after the deceased had accepted the invitation, may well have induced the jury to believe that there was a case that the deceased was put in danger of being murdered. 10. In these circumstances we cannot but hold that the manner in which the case was placed before the jury, the way in which the law with regard to secs. 302|34 and 364 was not distinguished in the charge to the jury, did lead to an erroneous verdict and a failure of justice. 11. In the result we allow this appeal, set aside the convictions and sentences and direct that the Appellants be set at liberty. Ahmad, J. I agree.