1. This is a reference made under the provisions of Section 307, Criminal P.C., by the Sessions Judge of Rajshahi. Four persons, Komoruddin Sheikh, Kadar Mandal, Majidullah Biswas and Jahir Mandal were placed on their trial upon a charge framed under Section 395, I.P.C. The story: briefly was as follows : These men and others attacked the house belonging to one Iswar Chunder Ghose on the night of 28th July last year. Iswar Ghose fired a gun injuring one of the men who died in his Court yard. The other men got away. It is said that the injured man was one Mohamed and that he named several of his accomplices. One Enaz was subsequently arrested and, immediately after his arrest, he made a confession and, upon his plea of 'guilty,' he was convicted by the learned Judge. He afterwards gave evidence in this case. The present accused were arrested before Enaz, and the enquiry before commitment was taken up by one Magistrate and finished by another. Then apparently Iswar Chunder Ghose was placed on his trial in regard to the shooting of the man who was shot in his court1 yard. He was discharged in January and the present case came on for trial in March. The trial occupied some days, over twenty witnesses being examined. The learned Judge, in delivering his charge which I think was extremely fair, placed before the jury all the evidence and pointed out the grave defects in the case for the prosecution. In spite of his warning the jury were unanimous in finding all the accused guilty. The learned Judge thinks that that verdict is wrong and feels unable to accept it and, in consequence, he has made this reference under Section 307, Criminal P.C.
2. Now, with regard to the occurrence of the dacoity, I do not think it necessary to express any opinion. It is enough to say in passing that there are many features in the story for the prosecution which give rise to considerable suspicion. The real question in the case is whether these four men were actually identified as taking part in the dacoity. I cannot but think that if more attention had been paid to this branch of the matter in the lower Court by those who represented the accused, the verdict might have been different.
3. Now, the evidence against the accused persons may be considered as of four kinds. First, there is the evidence of two witnesses who say that they saw some of these men going away shortly after the occurrence. The witnesses who say so are Mohesh Chunder Ghose and Panchananda Ghose. The former says that he recognized Raisuddin who was not on his trial and Jaher. The latter says he recognized Kader, Komoruddin and Enaz. Now, the difficulty about accepting this evidence is: first, that the Sub-Inspector says that those witnesses told him nothing of the kind; and, secondly, that the evidence of the other persons who gathered at the house shows that there was nothing said by those men about the recognition of the dacoits when they came to the house.
4. The next piece of evidence is the evidence derived from the injured man Mohamed. It is said that, as he lay dying, questions were put to him as to who were the persons who accompanied him and he gave several names. The names, according to the witnesses, are Kader, Komoruddi, Raisuddi and Nager. The chowkidar of the house Krishna Tirandaz adds another one Majit. But his evidence is extremely unsatisfactory. Now, the difficulty about accepting this evidence, as a statement made by Mohamed, is great. The first point is that, although the witnesses all say that the injured man was Mohamed, the first case set up by the prosecution was that nobody knew who he was and a witness was actually produced in the Sessions Court from another village to say that the man he found lying in the court yard was identified by him as Mohamed. Further, the evidence about the questions that were put to him and the persons who were present when the questions were put and the answers given is very unsatisfactory.
5. The next piece of evidence is the statement of Enaz. This man was arrested on 4th November. He made his confession the next day, 5th November. It is true that he stuck to it and he actually allowed himself to be convicted upon it. To that extent there is some sort of guarantee of its truthfulness, but he remains an accomplice with all the suspicion attaching to an accomplice. In cross-examination he says that he made this confession in the hope of being pardoned, which I take to mean 'in the hope of being made an approver,' and it is quite possible; but there is no evidence to that effect that some hope was held out to him in that respect. Whether that is so or not he is an accomplice and his evidence must be viewed with all the suspicion which ordinarily attaches to the evidence of an accomplice.
6. The last piece of evidence is the statement made or said to have been made by Jahir to his father's landlord, Solomon, shortly after the occurrence. It seems to me very strange that a person who has committed a dacoity should, before anybody has begun to suspect him go and say that he has committed the dacoity and ask what is to be done and tell his landlord all about it. Jahir says that he did not make this statement and it is difficult to believe the story told against him.
7. This is all the evidence against the accused except a few fragments which have been placed before us by the learned counsel appearing for the Crown. Ha has pointed out that Komoruddin was seen with Bnaz shortly after the occurrence; that Kader told one of the witnesses about the affair on the following morning before news of it from other sources reached the neighbourhood; and that Majidulla who is a cultivator, was reported absent by the chowkidar on the night of the occurrence. These are very slender pieces of evidence. Taken on the whole, I think the learned Judge's comments, as contained in his letter of reference on the evidence connecting those accused persons with the crime, are correct and show a proper estimate of their value. In my opinion, therefore, the view taken by the jury is contrary to the evidence and ought not to be accepted and I agree with the learned Judge in thinking that the accused are entitled to a verdict of not guilty. The result is that, in my opinion, the reference ought to be accepted, the accused acquitted and set at liberty.
8. I agree.