Narayan G. Chandavarkar, Kt., Acting C.J.
1. At the outset what we observe is that the learned Sessions Judge would have probably acquitted the accused were it not for the opinion of the Assessors. He seems to be of the opinion that in a Sessions case the Assessors are the Judges of all questions of fact. That view of the law is erroneous. The Assessors are no doubt to assist the Judge but nowhere in the Code of Criminal Procedure has the Legislature invested the Assessors with the power of appreciating the evidence so as to bind the Judge. The theory of trial with the help of Assessors is that the system of Assessors forms as it were a stage towards the ultimate introduction of trial by a Jury. That was the object with which the Assessors' system was introduced in the earlier years of the introduction of Criminal law by the British Indian Legislature in this country. The opinion of the Assessors must have no doubt regard paid to it but after all it is the Judge who is to decide the case on the facts as well as law. His is the final responsibility.
2. Having made this preliminary remark I ought to say that the evidence in this case is of so evenly balanced a character that it would be unsafe to rest the conviction upon it. The learned Sessions Judge seems to be himself of that opinion ; because he says, had the case rested upon the evidence of the eye-witnesses Kondiram and Laxman he would have acquitted the accused. There he is right. Those are the witnesses who, as the record shows, are hostile to the accused. But he rests the conviction on the opinion of the Assessors, and on the testimony of Dhanaji, Mukta and Jayram. But even these witnesses are not free from the taint of hostility. Dhanaji says that one of his uncles against whom there is a case pending under Chapter VIII of the Criminal Procedure Code has absconded but he professes ignorance of the fact whether accused No. 2 was a witness in the case or not. Mukta and Jayram both of them have admitted that they had at some time or other given evidence against the accused. Therefore what evidence is there on which one can put one's finger and say that it is of such a certain and definite character that we must rely upon it ?
3. Then there is this improbability: the prosecution case is that accused No. 2 was caught red-handed. Is it likely that accused No. 2 a Kulkarni of fifteen years' standing would have gone to set fire to the house and instead of running away after he had set fire that he would have waited there until a crowd assembled.
4. All these are difficulties in the case which raise a reasonable doubt as to the guilt of the appellant.
5. On these ground, I think, the conviction and sentence ought to be set aside and the accused discharged. The fine if, paid, should be refunded.
6. I am of the same opinion. It appears to me that in convicting the present appellant the learned Sessions Judge went a long way in the direction of abdicating his functions in favour of his Assessors and I think he would have been better advised to rely more on his own opinion and less on the views of the Assessors. At the same time it is to be observed that he was not prepared to accept and act upon the Assessors' opinion as to the guilt of the other accused persons. No doubt the case is rather near the line. But it seems to me that it is one where the accused is certainly entitled to the benefit of that reasonable doubt which cannot be dissociated from the evidence upon the record. As the learned Judge himself distinctly observes, the main witnesses Kondiram and Laxman are not men to whose testimony he would be prepared to give effect unless it were corroborated aliunde. That is so not only because these two witnesses have private grudges to satisfy against the appellant but also because their story is on its face improbable. It is improbable that if the appellant set fire to this hut he should have remained on the spot till the hut was well ablaze.
7. The evidence of Dhanaji, Mukta and Jayram upon whom the Sessions Judge is inclined to rely does not, in my opinion, carry the case far enough to warrant a conviction. For, their evidence, though it may be difficult to square with the particular story which was put forward for the defence, is by no means inconsistent with the accused's innocence.
8. It may be added that the inordinate delay which on the prosecution case occurred in Jayram's journey to Sheogaon is also a point which makes strongly in favour of the defence.
9. In view of these circumstances and the undeniable fact that the greater part of this evidence is tinged with feelings of private animosity, it seems to me that the only safe course is to direct the appellant's acquittal.