Muhammad Rafiq and Piggott, JJ.
1. This is a reference by the learned Sessions Judge of Benares under Section 307, Clause (1), of the Code of Criminal Procedure. It seems that one Narain was tried in the court of the learned Sessions Judge with the help of jury on a charge of theft. The charge was denied by Narain. The prosecution examined throe witnesses in support of the charge and the accused gave evidence to show that he bore a good character. The jury returned a unanimous verdict of not guilty. The learned Sessions Judge, being of opinion that the verdict of the jury was flagrantly in opposition to the evidence in the case and was perverse, did not accept it and has submitted the case to this Court under Section 307, Clause (1), of the Code of Criminal Procedure. We find on a perusal of the record that, after the first two witnesses for the prosecution had been examined, it was discovered that one of the jurors was deaf and had not followed the trial at all. He was discharged and another juror was added, The learned Sessions Judge did not commence anew the trial of Narain, but called up the first two witnesses for the prosecution and had their statements read out to them and they admitted that their evidence which they had heard was correct. The trial then proceeded and other witnesses were examined for prosecution and for the defence. Apart from the question whether the verdict of the jury is perverse or not, we find that the trial before the learned Sessions Judge has been defective in view of the provisions of Section 282 of the Code of Criminal Procedure. It was not open to the learned Sessions Judge to merely read over the statements of the first two witnesses and obtain their admissions to validate the trial where one of the jurors had been discharged and replaced by a new juror. We therefore direct that Narain be retried before another jury according to law.