1. This is a Reference under the provisions of Section 307 of the Criminal Procedure Code by the learned Sessions Judge of Hooghly with reference to the case of ten accused persons, now before us, who along with eight others were tried before a jury. With regard to the latter, the verdict of the jury has been accepted by the learned Sessions Judge. The accused persons were tried on charges under Sections 147, 304 read with Sections 149, 325 read with Section 34 and Section 148 of the Indian Penal Code. The learned Sessions Judge disagreed with the verdict of the jury with reference to the ten accused persons before us and has, under the provisions of Section 307, referred the case of the ten accused persons to this Court for its orders.
2. The facts have been very fully and exhaustively set out in the learned Sessions Judge's charge to the jury and also in the letter of reference to this Court and, therefore, it will not be necessary for us to repeat the same in detail. Briefly stated, it appears that there is a person of the name of Nritya Gopal Roy in village Sachanari in the district of Hooghly, and within the jurisdiction of the Arambagh Police Station. He is apparently a person of considerable wealth and influence in the village, but he is given to dissolute habits, and it is stated that some time before the date of the occurrence he brought a prostitute of the name of Kallidasi to the village and housed her near the houses of respectable villagers. These latter remonstrated with Nritya Gopal and for some time past, there has been considerable tension of feeling between Nritya Gopal and his adherents on the one side and the people who were opposed to him in the village. Proceedings under Section 107 of the Code of Criminal Procedure were started by both parties against their respective adversaries and there has been, as stated above, considerable friction, between the two parties owing to this and other reasons. It is alleged that on the 1st Baisak last, corresponding to 16th April, 1922, Nritya Gopal accompanied by some of his adherents came to the house of one of his opponents named Surendra Sarkar. There a person of the name of Safulla Thakur, who was a Brahmin by caste, was sitting at that time in the Baitakkhana of his master and Bhikkabhai Surendra Sarkar. Nritya Gopal with two of the accused, Rakhal and Nogen came and began to taunt Safulla. Safulla remonstrated with the party but to no effect and thereupon, it is alleged, Nritya Gopal gave orders to his men to attack Safulla. It is alleged that under the orders of Nritya Gopal accused No. 7 Nerode Adak gave Safulla a lathi blow. Safulla was-severely wounded and was carried to a sugar-cane field where he was further struck several times by means of lathis at the instance of Nritya Gopal and some of his adherents. Meanwhile two of the servants of Surendra Sarkar named Nibaran Bagdi and Sarada Bagdi who were sitting in the baitakkhana of Surendra when Safulla was attacked, came to the rescue of Safulla. Their intrusion wass resented by Nritya Gopal's men and the accused Rakhal, it is alleged, speared; Nibaran in the abdomen and the accused Nogen Adak speared Sarada. At or about this time the assault on Safulla had proceeded so far that he lost his consciousness, and thereafter, it is alleged, Safulla was carried to Nritya Gopal's house. Safulla's clothes had been smeared with) blood and it was thought necessary that his clothes should be changed. This was accordingly done in Nritya Gopal's house. He was thereafter taken to the house of the accused Rakhal where he was kept for some considerable time. Afterwards, he was carried to the house of certain persons who have been described in this Reference as the 'Tellies' and at this last place ones of the 'Tellies' a person of the name of Subodh Dey was severely assaulted by the rioters. Safulla, thereafter, was carried to the Sadar door of Surendra Sarkar and was left there. The two persons who had been struck by means of spears Nibaran and Sarada, died shortly after As regards Safulla he recovered after lapse off a considerable time from the effects of the wounds which had been inflicted on him. News of this assault was taken to the police station which is at a distance of 12 miles from the scene of the occurrence, by one of the Tellies, namely a person called Kamikha Dey. He apparently was not, at the time when he started for the police station, fully acquainted with all that had happened. His information has been commented upon as not being exhaustive and sufficiently full of the incidents spoken to later on, by the prosecution witnesses. Investigation was commenced by the police officers on the following day. Nibaran and Sarada, died shortly thereafter. During the course of the police investigation it was found that the accused persons and other persons belonging to their camp had all left the village, and the police officers had considerable difficulty in tracing them out and in collecting informations as regards the occurrence. The evidence as against the accused personsihas been divided by the learned Sessions Judge in his charge to the jury and also in his letter of Reference to this Court, under four heads -the first head being the assault on Safulla at the house of Surendra Sarkar, the second part of the case being concerned with the incidents which had happened when Safulla was carried to the sugarcane field and thence to the house of Nritya Gopal and thence to the house of Rakhal. The third part of the case related to the incidents which took place at the house of the Tellies and the fourth part of the case related to the incidents which took place when Safulla was carried to the Sadar door of his master.
3. With reference to the first part of the case there are two witnesses who speak to it, namely, Safulla and the witness Brojonath. With reference to the second part of case, not less than seven witnesses speak to the same but with reference to the first two of the seven witnesses who speak to the second part of the case, the learned Judge has very fairly put before the jury and also in the letter of Reference, circumstances indicating, in his opinion, that these two witnesses, namely, Chandy Charan De and Babu Ram De were not witnesses on whose testimony implicit reliance could be placed. He has, however, discussed fully the evidence of the five remaining witnesses.
4. With reference to the third part of the case, there are two witnesses, namely, Subodh Charan De being the person who was beaten at the house of the Tellies and Chandy Charan De, one of the two witnesses whose testimony has not been accepted by the learned Judge.
5. As regards the fourth part of the case, there is the evidence of Safulla who had regained his consciousness by the time when he was taken from the house of Rakhal to the Sadar door of Surendra Sarkar, in addition to the evidence of the witness No. 23, Jogendra Dulay and the witness Radhi Bagdini, who is described as one of the mistresses of Nritya. The learned Sessions Judge has in his charge to the jury as well as in his letter of Reference to this Court, pointed out certain circumstances which in his opinion went to show that the defence theory which was to be gathered from the cross-examination is one which cannot be believed. There is in our opinion considerable force in what the learned Judge has said with reference to the unreliability of the case set up by the defence in the Court below. We have examined such portions of the evidence as were relied upon by the accused in the Court below as proving their innocence in this case with some degree of care, and we have also listened with attention to what has been urged by Mr. Mukerjee in support of theory that the case of the prosecution is one which cannot be relied upon. Now in this case nearly all the witnesses of the prosecution were partisan witnesses. This is a fact which has no doubt been referred to in the learned Sessions Judge's charge to the jury and also in his letter of Reference to this Court. For sometime past, criminal proceedings were pending between the parties, some of which were started by one faction and some by the other faction. Mr. Mukherjee has dwelt upon this fact for the purpose of showing that the jury were entitled to take into consideration the nature of the case for the prosecution and the character of the witnesses. In other words the jury were entitled to consider whether there was sufficient motive on the part of the witnesses for prosecution to so depose as to bring home to the accused their guilt in this case. Mr. Mukherjee has also> called our t attention to the fact that not only did the jury bring in a unanimous verdict of not guilty with reference to the eighteen persons, but that with reference to eight of such persons the verdict of the jury has been accepted by the learned Sessions Judge indicating thereby that at any rate the evidence with reference to the eight accused persons as regards whom the verdict of the jury has been accepted by the learned Sessions Judge was in the opinion of the learned Judge not of such a nature that it could be relied upon. Mr. Mukherjee has further argued that if the learned Judge was of opinion that with reference to the eight accused the prosecution evidence could not be safely acted upon, there is considerable room for the contention that with reference to the remaining ten accused persons the same standard of judgment should be applied to the evidence as regards them. In other words, it is urged that it is not enough to show that this Court, if it had tried the case as a Court of original jurisdiction would upon the evidence on the record come to a conclusion other than the conclusion at which the jury have come, but that it must be shown by this Court, before it sets aside the verdict of the jury on a Reference under Section 307 of the Code of Criminal Procedure, that the verdict of the jury with reference to the ten persons whose case has been referred to this Court is so manifestly wrong that it must be set aside by this Court. We have come to the conclusion on consideration of the whole case that the defence theory is one which cannot be accepted, but our duties under Section 307 do not end by merely finding that the defence story is one which cannot be accepted. We have to find out for ourselves whether on the evidence such as appears on the record it was possible for the jury to take the view which they have taken in this case with reference to the ten accused persons whose case has been referred to us. Putting it briefly, it amounts to this namely whether the jury were entitled to discount the evidence which had been given by the prosecution witnesses, because of the fact that the witnesses who have come and deposed on the side of the prosecution are witnesses who are admittedly adherents of a party opposed to that of the accused. In the second place, the fact that nearly all the witnesses had been at some time or other, concerned in criminal oases either started by them or started against them is a circumstance so important that the jury can hardly be blamed if they took that into their consideration, and came to the conclusion that the evidence on the side of the prosecution was one which they could not accept. In the third place, if the evidence with reference to the eight accused could not be relied upon, could it be said with certainty and safety that the evidence, with reference to the ten accused, given by the same persons who spoke to the culpability of the eight accused with reference to whom the learned Sessions Judge has accepted the verdict of the jury, is of such a character, after making all allowances as regards the partisan character of the witnesses and the motive of the witnesses, as to induce us to hold affirmatively that the verdict of the jury in this case with reference to the ten accused whose oases are now before us, is manifestly wrong? On a very careful and anxious consideration pf the case, we have come to the conclusion that we could not say that that evidence is of such a character that the verdict of the jury is manifestly wrong. There can be no doubt whatsoever that an occurrence such as has been described above did take place. But these are not circumstances which would entitle us to hold on consideration of the evidence on the record that the prosecution evidence must necessarily be believed. We have come to the conclusion that we cannot accept this Reference and that the accused persons must be discharged.
6. Our attention has been drawn by Mr. Mukherjee to a series of cases decided under the provisions of Section 307 of the Code of Criminal Procedure, laying down principles which ought to guide this Court when it is called upon to exercise its powers under Section 307. The case which has always been referred to in this connection is the well known case of Queen v. Sham Bagdi (1873) 20 W.R. Cr. 73. If we respectfully may, we endorse and emphasise what has been laid down in that case and also the principles laid down in the case of Emperor v. Surnamoyee Biswas (1913) 41 Cal. 621.
7. The bail bonds of the accused are discharged.