SEN, J. ( 1 ) THE appellants Nedo Kar alias Chunilal Kar. Nand Kishore Kar alias Gutkay and Haripada Ghose have been convicted under Section 364, Penal Code by Sri P. N. Lahiry, Sessions Judge, Burdwan and sentenced to suffer rigorous imprisonment for seven years each. ( 2 ) THE Prosecution case briefly was as follows: the appellant Nedo and Gutkay are brothers living in the same house at Srirampore in Purbasthali Police Station. The appellant Haripada is a friend of theirs and so was the deceased Tehtul Das, also a resident of Srirampore. The three appellants and the deceased Tentul had a joint business in illicit liquor and they used to distil, consume and sell illicit liquor. Five or six days before the murder of Tentul there was a quarrel between Tentul and the appellants over the demand by Tentul of the price of the liquor which he had made and supplied to the appellants for sale, and which the appellants refused to pay. In the course of the altercation it is alleged that the appellants threatened to kill Tentul but at the intervention of common friends, namely, Bhagirath Das, brother of Tentul Das, and Dwijapada Sircar, another resident of Srirampore, the quarrel was patched up. The occurrence took place on Tuesday, 13-7-1954. That day at about 8 O'clock in the morning the three appellants called Tentul to attend the temple of Pora Matola at Nabadwip where the appellant Nedo wanted to offer puja accompanied by sacrifice of goats. The deceased Tentul accompanied them to Nabadwip which is situated at a distance of about 3 or 4 miles from Srirampore village. Tentul returned at noon with a quantity of sacrificial meat. At about 4. 30 or 5 P. M. the appellants cameagain and called Tentul, saying that he must come and have his meal at the house of the appellants Nedo and Nanda Kishore, and Tentul went away with the appellants. Later in the afternoon and in the evening Tentul was found sitting with the appellants in different places of the village including a mango garden and a jute field belonging to the accused Nedo and Nanda, drinking liquor along with the appellants. As Tentul did not return home even by 10 O'clock at night, his wife Annabala Dasi became anxious and sent her brother-in-law Bhagirath Das to enquire about her husband. As Tentul did not return home even by 10 O'clock at night, his wife Annabala Dasi became anxious and sent her brother-in-law Bhagirath Das to enquire about her husband. Bhagirath went to the house of the appellants Nedo and Nanda Kishore and they said that Tentul would soon return home. Tentul, however, did not return. Next morning, Annabala and Bhagirath, the wife and brother of the deceased, respectively, became more anxious and they informed many people in the village and searched for Tentul all over the village and the neighbourhood. They also sent information to Balai and Satkari, brothers of Annabala, living at Nabadwip. On Wednesday, in spite of search by various persons, Tentul or his body could not be found. On Thursday morning also the body could not be found and in the morning at 7. 45 A. M. Lakshminarain, a distant nephew of the deceased, went to Purbasthali Police Station and gave an information which was recorded in the General Diary regarding the missing of Tentul, mentioning the fact that he had gone away with the appellants Nedo, Gutkay and Haripada. On the same day, that is, Thursday the 15th July 1954, in the afternoon the body was found weighted down with bricks and floating in the Buriganga river situated at about 4 miles east or south-east of Srirampore village. Accordingly, Lakshminarain went again to Purbasthali Police Station and lodged a first information report at 5. 15 P. M. on the same day, 15th July, 1954, stating over again that the appellants Nedo, Nand Kishore and Haripada had called and taken away Tentul at about 5. 15 P. M. on 13th July, 1954, on the plea that they wanted him to dine with them at Nedo's house and that Tentul had not returned and that his body had been found in the Buriganga river and they suspected that the accused had called Tentul for the purpose of murder and actually murdered him. The Police then took up investigation and in due course submitted a charge sheet against the three appellants under Section 364,. Penal Code and under Section 302, Penal Code. The learned Magistrate after the preliminary enquiry committed the appellants to the Court of Session in respect of the charge under Section 334, Penal Code only. ( 3 ) THE appellants pleaded 'not guilty'. Penal Code and under Section 302, Penal Code. The learned Magistrate after the preliminary enquiry committed the appellants to the Court of Session in respect of the charge under Section 334, Penal Code only. ( 3 ) THE appellants pleaded 'not guilty'. Nanda Kishore alias Ghutkay stated, in particular, that they had not invited Tentul and that he (Gutkay) had not met Bhagirath that evening. The other appellants merely pleaded 'not guilty' and made no definite statements. The defence generally was that Tentul might have met a violent death in some other way and that the case had not been proved against the appellants. The Jury, however, returned a unanimous verdict of 'guilty' in respect of the charge under Section 364, Penal Code against each of the three appellants, and the learned Judge accepting the verdict convicted and sentenced the appellants as described above. ( 4 ) IN this appeal the principal point urged by the Mr. S. S. Mukherji appearing for the appellants is that the learned Judge ought to have directed the Jury to return a verdict of 'not guilty' as there was no evidence which, even if accepted, would prove the Prosecution case. Under Section 289 (2), Criminal P. C. , after the examination of Prosecution witnesses and the examination of the accused and after address by the Public Prosecutor, if the Court considers that there is no evidence that the accused committed the offence charged, the Court may direct the Jury to return a verdict of 'not guilty'. It has to be considered whether it can be said that in this case the learned Judge should have considered that there was no evidence that the accused had committed the offence. ( 5 ) THERE were 17 witnesses examined in all for the Prosecution. Of them, P. W. 1 Annabala Dasi, wife of the deceased, and P. W. 2 Bhagirath Das, younger brother of the deceased, both stated that five or six days previous to the day of occurrence there had been a quarrel between Tentul and the three accused over the price of liquor and that the accused had threatened to kill Tentul and the quarrel had been settled at the intervention of Bhagirath and Dwijapada. They also stated, however, that amity was restored thereafter and that on Tuesday, 28th Ashar (13th July, 1954) at about 8 O'clock in the morning the accused called Tentul to accompany them to Pora Matoia temple at Navadwip for puja with sacrifice of goat and that Tentul went with them and returned at noon with a quantity of meat, and that at about 4 or 4. 30 P. M. the accused again came and called away Tentul saying that they wanted him to partake of a feast at the house of Nedo and Gutkay. In the General Diary which is the earliest information given to the Police, when it was not yet known that Tentul was dead, it was mentioned that on 13th July, 1954, at about 5 P. M. Tentul had left his house along with Chunilal alias Nedo, Nanda Kishore alias Gutkay and Haripada to partake of a feast at the house of Nedo and that from Nedo's house they all four went to a lonely place near the Kalnakatwa Road to partake of liquor and that the accused returned to their respective homes but Tentul did not return, and that when Lakshminarain, the informant, went to enquire at the houses of the accused, they told him that Tentul had parted with them from the place of assembly. P W. 2 Bhagirath stated that he was sent by his sister-in-law at about 10 O'clock for Tentul and that he went to the house of the accused and they informed him that Tentul would soon return home. In the committing court Bhagirath stated that Nedo and Gutkay had told him that Tentul had already taken leave of them and had left. The evidence of Annabala is that she sent her brother-in-law to make enquiry about her husband and her brother-in-law came and informed her of what the accused had said. ( 6 ) THERE is the evidence of witnesses that, two days later namely, on Thursday, 15th July, 1954, a headless body was found floating in the Buriganga river but that the body was identified as that of Tentul. ( 6 ) THERE is the evidence of witnesses that, two days later namely, on Thursday, 15th July, 1954, a headless body was found floating in the Buriganga river but that the body was identified as that of Tentul. As to the evidence of identification of dead body, there is the evidence of P. W. 1 Annabala, P. W. 2 Bhagirath Das, and a large number of other witnesses including P. W. 11 Narayan Chandra De, the Vice-president of the Union Board and a resident of Srirampore village, and Mr. Mukherji has not, in fact, challenged the identification of the body. As regards the cause of the death, the medical evidence is inconclusive, because the only ante-mortem injury which could be found in the body which was highly decomposed was an extravasated wound accompanied by fracture of the right tibia below the knee. But in view of the fact that the body was found weighted down with nine pieces of brick as proved by a number of witnesses including the investigating officer, it could be safely inferred that some people had killed Tentul and had then weighted down the body and had thrown it into the river in order to conceal the evidence of the murder. There is no evidence at all to show who committed the murder. There is one witness P. W. 8 Karnadhar De who stated that he saw appellant Nedo with a blood stained dao in hand and blood marks on his wearing cloth. His evidence is that on 28th Ashar, Tuesday, he was going to the banana plantation of his father-in-law south of Srirampore village and that on the way he saw Gutkay, Haripada and Nedo with Tentul engaged in drinking on the Masta land of Gutkay about sundown, and that when he was returning about half an hour later he saw Nedo coming from the Mesta land with a blood stained dao and marks of blood on his cloth and he asked what was the matter and Nedo asked him to mind his own business. This witness was examined by the investigating officer on 10th September, 1954 that is, more than six weeks after the date of occurrence. This witness was examined by the investigating officer on 10th September, 1954 that is, more than six weeks after the date of occurrence. P. W. 8 Karnadhar De gave the explanation that he works as a mason and that on the next morning, Wednesday, the 29th Ashar, he went to Patuli village at a distance of 15 or 16 miles from Srirampore to work as a mason and stayed there for one month and then he went to Meteli village where he worked for a week and then he returned to the village and heard of the death of Tentul and then he told people what he had seen. It appears, however, from the evidence of the investigating officer P. W. 17 that before the investigating officer he stated that in the very next morning after he had seen Nedo with a blood stained dao and blood stained clothes he heard of the death of Tentul. In the circumstances, it is naturally difficult to place much reliance on the evidence of P. W. 8 as to his having seen Nedo with a blood stained dao and blood stained clothes about half an hour after sundown on the day of , occurrence. This discrepancy was pointed out by the learned Judge to the Jury. ( 7 ) THERE remains the evidence of a number of witnesses who saw the deceased Tentul drinking together with two of the accused, namely, Nedo and Haripada, in the mango garden and in the jute-field belonging to the accused Nedo and Gutkay. These witnesses are P. W. 4 Ananda Prosad alias Bhadolal De, P. W. 13 Dharmadas De and P. W. 10 Batakrishna De. P. W. 4 Bhadolal stated that on Tuesday. 28th Ashar, at dusk he was returning home after cutting grass in the fields of the village Srirampore and he saw the accused Nedo and Haripada drinking wine with Tentul in the jute land of Gutkay. P. W. 4 Bhadolal stated that on Tuesday. 28th Ashar, at dusk he was returning home after cutting grass in the fields of the village Srirampore and he saw the accused Nedo and Haripada drinking wine with Tentul in the jute land of Gutkay. They were sitting at a place which is visible to passersby on the road which passes by the jute land; and about the time he said that the sun was just setting at the time P. W. 13 Dharmadas stated that on Tuesday, 28th Ashar, he was returning home at dusk and he heard some talk in the jute land of Nanda Kishore alias Gutkay and on going near he saw that Haripada and Nedo were drinking liquor with Tentul and Tentul was lying on the ground and refusing further drink which was being pressed upon him by Nedo and Haripada P. W. 10 Batakrishna De stated that on 28th Ashar in the afternoon on his way back from Buriganga he found Tentul, Haripada and Nedo drinking liquor in the mango garden south of Srirampore Which was a lonely place near the Kalnakatwa Road. This witness proved a sort of alibi for the remaining accused Gutkay. He stated that Mr. Gain, a sub-deputy Collector who has now retired, held an enquiry in the village on the 28th Ashar in connection with a case between Dasu Dutt and Tarabala Dasi and that the enquiry was over by 6 or 6. 15 P. M. and that the accused Gutkay attended that enquiry. This fact was also pointed out by the learned Judge in his charge to the Jury. ( 8 ) LASTLY, there is the evidence of P. W. 6 Tarapada Sarkar who said that on 28th Ashar, Tuesday, at 3. 30 P. M. he saw Tentul, Nedo and Haripada passing by his house and Tentul had a bottle of liquor in his hand and that at about 10 P. M. Tentul's wife came to his house in search of her husband. As regards the previous quarrel, there is the evidence of P. W. 2 Bhagirath and P. W. 7 Dwijapada Sarkar. Both of them, however, Gay that although the accused had threatened to kill, the quarrel was settled by their intervention and amity was restored. As regards the previous quarrel, there is the evidence of P. W. 2 Bhagirath and P. W. 7 Dwijapada Sarkar. Both of them, however, Gay that although the accused had threatened to kill, the quarrel was settled by their intervention and amity was restored. ( 9 ) THAT being the state of the evidence, we do not think that it was a case coming within the words of Section 289 (2), Criminal P. C. In other words, it was not a case where there was no evidence that the accused committed the offence. Therefore, it would not be correct to say that the learned Judge should have directed the Jury to return a verdict of 'not guilty'. On the other hand, it must be conceded that the evidence was rather weak to show that at the time when the deceased was taken away by the accused, the accused had the purpose or intention to murder Tentul. The learned Judge told the Jury, both when explaining the charge and in dealing with the evidence, that it was not sufficient to prove that Tentul had associated with the accused before his disappearance, that he had been called away by them, and that he had ultimately been murdered; and that in order to bring home a charge under Section 364, Penal Code they must be satisfied that at the time when they took away the deceased they had the intention to cause his death. At the end of his charge the learned Judge told the Jury as follows:"the whole point in this case is whether the three accused abducted Tentul for the purpose mentioned in the charge. I have told you that you cannot form any opinion about such purpose unless you can hold that Tentul was murdered after his disappearance from home. . . . . . If you think that Tentul was murdered and his body was thrown into river with a load after severing the head, you will have to reckon with the possibility whether the murder could have been committed without the knowledge or connivance of the accused. "this portion of the charge, while correct when taken with what precedes, might have given the Jury the impression that it was sufficient if the accused had been associated with the deceased before his death and if Tentul had thereafter been actually murdered. "this portion of the charge, while correct when taken with what precedes, might have given the Jury the impression that it was sufficient if the accused had been associated with the deceased before his death and if Tentul had thereafter been actually murdered. At this place the learned Judge also should have given more stress to the point that it was necessary for the charge under Section 364, Penal Code that there should have been the plan or intention that Tentul should be murdered at the very time when Tentul was called away from home on the plea that he was required to partake of a feast. The possibility of there being no such plan when Tentul was called to partake of a feast, but murder having been committed later in the course of a drunken brawl in which both the deceased and the accused participated, was not placed before the Jury. If this possibility had been placed before the Jury, it is possible that in view of the state of the evidence the Jury would have come to a different conclusion. In the circumstances, the omission to point out the possibility that there was no such plan at the time when Tentul wascalled to partake of a feast but that there was a drunken brawl subsequently must be regarded as a non-direction, amounting to misdirection. The learned Judge should also have said that the evidence as to a quarrel over the price of liquor a few days before, afforded hardly sufficient material for holding that there was a plan for murder. ( 10 ) IN this connection it should also be pointed out that the evidence of P. W. 6 Tarapada Sarkar which has already been referred to is, to a certain extent, inconsistent with the Prosecution case that at about 4. 30 or 5 P. M. the accused came and called Tentul to partake of a feast. P. W. 6 Tarapada Sarkar stated that about 3 or 3. 30 P. M. he saw Tentul, Nedo and Haripada going past his house and that Tentul, was carrying a liquor bottle and that at about 10 P. M. Tentul's wife came to his house in search of her husband and he told her all what he had seen. P. W. 6 Tarapada Sarkar stated that about 3 or 3. 30 P. M. he saw Tentul, Nedo and Haripada going past his house and that Tentul, was carrying a liquor bottle and that at about 10 P. M. Tentul's wife came to his house in search of her husband and he told her all what he had seen. He did not say that at that time Tentule's wife informed him that the accused had called away her husband to partake of a feast. If the time was correctly given by Tarapada Sarkar, then the case as to invitation at about 4. 30 or 5 P. M. appears to be doubtful. It is true that the villagers do not have a very good idea about time and the discrepancy in the time may be explained thereby. But this discrepancy as to time, with the explanation should have been specifically pointed out to the Jury. The learned Judge did place the evidence of P. W. 6 including the time given by him, but he did say so when summarising the evidence of each of the witnesses and did not specifically draw the attention of the Jury to the fact that there was this slight discrepancy between the evidence as to time given by P. W. 6 Tarapada and other witnesses. It is not unlikely that if the attention of the Jury had been pointedly drawn to this, they might not have accepted the first part of the Prosecution case relating to the three accused having come at about 4. 30 P. M. or 5 P. M. and called Tentul on the plea of partaking of a feast, which does not appear to have been given to the deceased, because thereafter the deceased and the accused were seen only drinking together and not partaking of a feast. ( 11 ) IN view of the non-directions pointed out, and the nature of the evidence, it must be held that the verdict of the Jury and the conviction of the appellants passed thereon cannot be upheld. ( 12 ) ACCORDINGLY, this appeal is allowed. The conviction of all the three appellants under Section 364, Penal Code and the sentences passed thereunder are set aside and it is directed that the appellants be released forthwith.