1. This is a reference made by the learned Sessions Judge of Assam-Valley Districts under the provisions of B. 307, Criminal P. C, in a case tried by him with the aid of a jury which found the accused Umaoharan Pal and Kalicharan Pal not guilty by a majority verdict of 3; 2.
2. The learned Sessions Judge disagreed with the verdict of the majority in so far as it related to the accused Kalieharan Pal, and made the present reference.
3. While agreeing with the verdict of the jury in regard to the accused Umacharan Pal, we have been informed that the learned Sessions Judge did not pass a formal order of acquittal. This failure, however, has not prejudiced the accused Umacharan Pal who was on bail during the trial and was not remanded to custody after the verdict of the jury.
4. Mr. Barman for the Crown has supported the reference and has argued that the accused Kalicharan Pal is guilty of an offence either under Section 304, Penal Code, or under Section 325, Penal Code, and that the verdict of the jury should be Bet aside in the interests of justice.
5. The facts of the case are these. The accused Kalioharan Pal is a nephew of the deceased Andhar Ghosh. On 18th July 1947, while the deceased Andhar Ghosh was engaged in erecting a fence on the common boundary of the lands belonging to him and the accused Kalicharan Pal and his brother Umaoharan Pal, an altercation took place between them and in the course of the altercation, Umaoharan Pal snatch, ed the hoe from the possession of Andhar Ghosh and hit him with it in the region of his chest. Umacharan Pal and the deceased Andhar then grappled with each other, whereupon the accused Kalioharan Pal hit the deceased on the head with a Dao, as a result of which Andhar fell. He sue cumbed to his injuries on the following day shortly before noon. His wife, Mt. Kanchanmati, carried the dead body of her husband to the police station where aha lodged the first information report. After due investigation, Ealioharan and Umacharan were sent up for trial and a charge under Section 801 read with Section 34, Penal Code, was framed against both the accused.
6. The defence of the accused was that on the day in question, the deceased Andhar attempted to raise an 'atia' on the accused's land; that when accused Umacharan Pal protested, the deceased Andhar Ghosh assaulted him. Umacharan then snatched the hoe from Andhar and threw it way Andhar caught hold of Umacharan and a scuffle ensued Kalicharan Pal came and separated them.
7. The learned Sessions Judge has stated in the reference that the prosecution case is sup-ported by the evidence of Mt. Kanchanmati Ghosh, the widow of the deceased Andhar Ghosh, and her daughter, Mt. Urbasi, and her son, Girin, and one Bhakat. According to the learned Sessions Judge, they were all eye-witnesses to the occurrence, and he points out that the only contradiction in the evidence of the so witnesses relates to the precise location of the injuries inflicted upon the deceased.
8. The evidence of p. w. Bhakat which impressed the learned Sessions Judge as the evidence of an independent witness, does not appear to us to have the effect of supporting the prosecution case. Mt. Kanchanmati Ghosh, Mt. Ur-basi and Girin had deposed that the accused Kalioharan hit the deceased Andhar Ghosh on the head with the handle of a as before the deceased had fallen to the ground, whereas the the evidence of Bhakat shows that the deceased received the fatal blow when he (the deceased Andhar) and the two acouaed were struggling together and rolling on the ground. Moreover, it does not appear to us unreasonable to infer from the evidence of Bhakat that the widow of the deceased and her two children might have arrived at the scene after the fatal blow had been given to the deceased.
9. The principle governing interference by a High Court upon a reference made under the provisions of Section 307, Criminal P. C, has been stated by their Lordships of the Privy Council in Bamanugrah Singh v. The King.Emperor, 60 Cal. W. N. 906 : A.I.R. (S3) 1946 P. C. 151: 47 Cr. L. J. 905 in these words:
If the jury have reached a conclusion upon the evidence which a reasonable body of men might reach, it is not necesaary foe the ends of justice that the Sessions Judge should refer the case to the High Court merely because he himself would have reached a different conclusion upon the facts, since he is not the tribunal to determine the facts. He roust go further than that and be of opinion that the verdict is one which no reason able body of men could have reaohed upon the evidence. The powers of the High Court is dealing with reference are contained in Sub-section (3). It may exeroise any of the powers which it might exeroise upon an appeal, and this includes the power to call fresh evidence conferred by 8. 428. The Court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury, and then acquit or convict the accued. In their Lordships' view, the paramount consideration in the High Court must be whether the ends of justice require that the verdict of the jury should be set aide. In general, if the evidence is such that it can properly support a verdict either of guilty, or not guilty according to the view taken of it by the trial Court, and if the jury take one view of the evidenoe and the Judge thinks that they should have taken the other, the view of the jury must prevail, Bince they are the judges of fact. In such a ease, a reference is not justified, and it is only by accepting their view that the High Courtoan give due weight to the opinion of the jury. If, however, the High Court considers that upon the evidence no reasonable body of men could have reached the conclusion arrived; at by the jury, then the reference was justified and the ends of justice require that the verdict be disregarded.
10. As we have observed, the evidence of Bhakat, a boy of 14 years of age, who, according to the learned Sessions Judge, was a disinterested witness, does not appear to us to have-the effect of supporting the prosecution case. This Bhakat was on the day in question tending his cattle at a distance of some 20 'tars' from the deceased's land when he heard an altercation between the deceased Andhar and the accused. He ran up to the deceased's land and saw Umacharan and Kalicharan engaged in a souffls—all the three were grappling with each other and ultimately all of them fell to the ground; the accused Kalicharan then hit the deceased Andhar on the head with a dao. This was the only blow which Bhakat saw being given by the accused Kalicharan. In cross-examination, Bhakat has stated that the wife of the deceased attempted to separate them when Andhar, Kalicharan and Umacharan were grappling with one another and that Kalicharan did not deal any blow-to the deceased Andhar when he was standing, Bhakat has also admitted in his evidenoe that there were 10 or 16 men at the time of the occurrence. It is true the exact point of time at which these 10 or 15 men came to the place of occurrence cannot be ascertained from the evidence of Bhakat, but the jury, as a body of reasonable men, might have come to the conclusion that these 10 or 15 men were present at the time of the occurrence before the alleged eyewitnesses arrived, and that as none of these 10 or 15 persona has been examined, they were not prepared to accept the evidence of the alleged eye-wit-nesses. In these circumstances, the jury might have taken the view that the fatal blow was given to the deceased by one of the two accused before the arrival of the alleged eye-witnesses.
11. The point for consideration of the jury was whether the persons examined as eye-witnesses in the case were, in fact, eye-witnesses, and in coming to a conclusion on this point, they were entitled to take into consideration the evidence of Bhakat for the purpose of appraising the evidence of the widow of the deceased and her two children, As we have observed, it would appear from the evidence of Bhakat that the fatal blow was given to the deceased while the deceased and the two accused were rolling on the ground. That, however, is not the prosecution case as disclosed by the evidence of the widow and her two children. According to them, the fatal blow was indicted upon the deceased while the deceased was standing and grappling with Umaeharan only. Moreover, the medical evidence shows that there were at least two injuries on the head, if not three. It is possible to say that the two injuries appearing on the right side of the parietal bone were caused by one blow, but the injury on the left side of the parietal bone cannot be explained on that supposition. The prosecution case was that only one blow was given. The jury might, therefore, have come to the conclusion that as there was no explanation in regard to the injury caused on the left side of the parietal bone, and that as there were discrepancies in the evidence of Bhakat and the three eye-witnesses, the evidence of the eye wit-nesses was not to be relied upon with the requisite degree of confidence, and that the fatal injury might have been caused to the deceased by one or the other accused before their arrivals.
12. It is to be observed that the first information report was not lodged immediately after the occurrence. There was a delay of at least 24 hours; the jury might have taken the view that the eye-witnesses apparently decided falsely to assign a particular part to each of the accused Kalicharan and Umaeharan. It is also to be observed that the prosecution case was that Umaeharan waa the first in point of time to cause injuries to the deceased in the region of his chest. The medical evidence does not show that the deceased had any injuries on the chest. Bhakat does not say that Umaeharan caused any injustices to the deceased. The jury might, therefore, have come to the conclusion that the evidence of the widow and her two children was not to be relied upon in so far as it implicated Kalicharan. We are, therefore, not; prepared to say, on the facts of this case, that the jury were unreasonable in coming to the conclusion if they did that the alleged eye-witnesses came to the scene of the occurrence after the fatal blow had been inflicted either by Umaeharan or by Kalicharan.
13. As has been observed by their Lordships of the Privy Council, it is not sufficient for the trial Court or the High Court to come to a different conclusion, upon the evidence, from the one arrived at by the jury because the jury are the judges of fact. It is only when the High Court cornea to the conclusion that, upon the evidence, the jury, as a body of reasonable men, could not have taken a different view, that the High Court would be in a position to reject the verdict of the jury.
14. Accordingly, we decline to interfere with the verdict of the jury, and order the accused Kalicharan to be acquitted. The learned Judge has omitted to pass a formal order of acquittal with regard to Umaeharan. We order that Umaeharan will also stand acquitted. The two accused will be set at liberty.