1. There are several reasons why we felt that we shall not be justified in interfering with the verdict of the majority of the jury in this case. In the first place, there appear to have been three persons, named Kandu, Gopal and Shib Charan, who were named as witnesses in the first information but they have not been called. No explanation worth the name has been given for the omission to call them ; the suggestion put forward by the prosecution being that they may have been gained over, but there is nothing on which such a suggestion could be supported. In a case like this, where the important witnesses examined are tenants either exclusively or, at any rate, partly of landlord interested in the prosecution, such an omission must necessarily tell very heavily on the prosecution case. Secondly a written Ejahar was produced at the Thana, the prosecution case being that it was written out, because the Police Officer concerned asked for a written Ejahar. The Police Officer has denied the story. The man who wrote it out has not been examined. In his absence it is not possible to ascertain what exactly was the version of the informant at the time when the Ejahar was put first down in writing or whether the writing represented a genuine version given by the informant himself or a version coloured by interference from other sources.
2. Thirdly, and this, in our opinion, is of far greater importance, the story given by the witnesses of burnt paddy etc., being found by the Sub-Inspeptor when he arrived at the spot was contradicted by the latter. It would not be sufficient to say in answer, as the Judge has purported to say that there is nothing in the police diary supporting the denial of the Sub. Inspector. It was a negative, which might naturally not find a place in the diary and yet may be true. It is noteworthy that though the Sub-Inspector's honesty has been challenged, the Circle Inspector who came later on on the scene and at whose instance the charge-sheet was submitted and who must also have seen the burnt paddy etc., if the story as to their existence was true, was not called as a witness. The omission to call him as a witness was in our opinion, exceedingly unfortunate. Then, there is the fact that some rent receipts etc., were saved from the fire and later on produced in Court for the purpose of proving possession. The explanation as to how they were saved is not very satisfactory and, in any event, is somewhat conflicting so far as its details are concerned. On the whole, we think, there are points on which it was open to the majority of the jury to hold that there were elements of doubt in the case. We desire to draw the attention of the learned Judge to the provisions contained in Section 162, Criminal P. C, and to impress on him the necessity of conforming to the said provisions when the Investigating Police Officer is allowed to be cross-examined by the defence. It was with the object of guarding against a true case being spoilt by an unscrupulous Investigating Police Officer that these provisions were enacted. The provisions, as far as we can see, have not been conformed to in this case. The reference is rejected. The accused are acquitted and should be discharged.