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5. "Second. That the said Barendra Kumar Ghosh together with certain other persons at or about the time and in the place aforesaid were jointly concerned in attempting to commit robbery on the said Amrita Lal Roy and that at the time of committing such robbery voluntarily caused hurt to the said Amrita Lal Roy and thereby he, the said Barendra Kumar Ghosh, committed an offence punishable under Section 394 of the Indian Penal Code.

6. "II. Whereas it has been represented to me that the accused pleadeds guilty to the aforesaid charge under Section 394, Indian Penal Code with the reservation that he did not cause hurt to the Post Master and pleaded not guilty to the charge under Section 302, Indian Penal Code, and the trial was proceeded with thereafter in respect of the latter charge.

34. "As neither of us knew Mr. Justice Page well enough, we both went, in the first instance, to another learned Judge of this Court to ascertain his views on the propriety of the course we were contemplating; and the said learned Judge unhesitatingly approved of our going in to see Mr. Justice Page in his Chamber. We may add that we fully explained to this learned Judge the object of our proposed visit to Mr. Justice Page. Accordingly, we went into Mr. Justice Page's Chamber, and told him that, subject to his permission, we should like to speak to him about the case of Barendra Kumar Ghose in which we had been briefed. On the learned Judge nodding his approval, we told him we had not seen our client yet, but had gone through the brief and thought it was a difficult case; and subject to what the client had to say to us, we wished to ascertain from the learned Judge beforehand if he would accept a, plea of guilty under Section 394, Indian Penal Code, and be ready thereafter to let the charge under Section 302, Indian Penal Code, be withdrawn against the accused. We reminded the learned Judge of Avhat he had done in the Postal Fraud Case, wheref upon he said that although he had adopted a course like that in the previous case, he could not do so in a case like the present one, that it was a ghastly affair, and that whilst we might be thinking of the poor prisoner in the dock he, the learned Judge, could not but be thinking of the life that was gone-that in this case he could not accept a plea of guilty to anything less than a charge under Section 302, Indian Penal Code, and that not even a plea of guilty to a charge of culpable homicide not amounting to murder would be acceptable to him Before leaving his Chamber we were assured by the learned Judge that in his opinion we had done nothing wrong in speaking to him on behalf of our client in the way we had.

57. The non-direction is alleged to consist in the omission of the Trial Judge to draw the attention of the Jury to the defence of the accused, save and except a mere reference to the statement of the accused, recorded under Section 342 of the Criminal Procedure Code. It will be convenient to consider the questions of erroneous direction and non-direction separately.

58. First, as to erroneous direction. The contention has been put forward on behalf of the accused that the direction specified is founded upon an erroneous view of the scope and effect of saction 34 of the Indian Penal Code. In support of this argument, reliance has been placed principally upon the judgment of Stephen, J. in Emperor v. Nirmal Kanta Roy 24 Ind. Cas. 340 : 41 C. 1072 : 18 C.W.N. 723 : 15 Cr. L.J. 460. In that case, Stephen, J., ruled that Section 34, read according to its own terms without reference to the doctrine of the English Law, applies only where a criminal act is done by several persons of whom the accused charged thereunder is one, and not where the act is done by some person other than the latter. On this basis, Stephen, J., held that where two persons, in furtherance of a common intention of both, fire at another, and one only actually hits and kills him, the other is guilty, not of murder under Section 302 read with Section 34, but of attempt to murder; these offences do not constitute the same act. Stephen, J., conceded that a wider construction had been placed on Section 34 in Queen-Empress v. Mahabir Tiwari 21 A. 283; A, W. N, (1899) 76 : 9 Ind, Dec, (N.s.)876 and as will presently appear, there has been much divergence of judicial opinion on the subject. In my judgment, the question |of the true construction and correct application of Section 34 is beset with graver difficulties than appear at first sight, and as I have arrived at a conclusion contrary to the opinion maintained by Stephen, J., who had made a profound study of Criminal Law, both Indian and English, it is only fair that his views should be stated in his own words. The exposition of these views, concisely set out in his judgment in Emperor v. Nirmal Kanta Roy 24 Ind. Cas. 340 : 41 C. 1072 : 18 C.W.N. 723 : 15 Cr. L.J. 460 was amplified and re-stated by him in the following extract from a letter published by him in the Calcutta Weekly Notces, Volume XVIII, page 222 (ccxxii) short-notes:

77. Reference has been made to opinions of commentators which, in some instances at least, do not go to the root of the matter. The commentary on the Indian Penal Code by Mr. W. Morgan and Mr. A.G. Macpherson may be mentioned as an illustration, though their opinion, so far as it goes, is entitled to the highest respect. Mr. Morgan was clerk to the Legislative Council and assisted Sir Barnes Peacock when the Bill, which was subsequently enacted as the Indian, Penal Code, was put into its final form; he was one of the Judges of this Court till lie was appointed the first Chief Justice of the Agra High Court. Mr. Macpherson also was for many years a Judge of this Court. The only observation which they have to offer on Section 34 is that "the actual doers, who are the persons referred to here, are to be distinguished from those who abet the doing of a thing," they then add that the law concerning principle actors is contained in Sections 34, 35 and 37, while what constitutes ah abetment is explained in Chapter V. The question however, remains who are the persons who may, in a particular case, be rightly regarded as the actual doers.