1. This is a reference under Section 307, Criminal P.C. The accused, Jit Lal Bahadur, was tried together with Dhan Bahadur on a charge of murder by the Additional Sessions Judge of Alipore and a Special Jury. The jury returned a verdict of not guilty in favour of the accused Jit Lal by a majority of 6 to 3. They found Dhan Bahadur not guilty by a majority of 7 to 2. The learned Additional Sessions Judge has accepted the verdict of the jury so far as Dhan Bahadur is concerned and has acquitted him. As regards Jit Lal the learned Judge has referred the matter to us stating that in his opinion the verdict of the jury was against the weight of evidence. The case for the prosecution may briefly be stated as follows : The deceased Kashmiri Buddha was a beggar and he was known to the accused Jit Lal. Although Kashmiri was a beggar nevertheless he had sufficient money to advance loans to various people. It is said that Jit Lal who was in arrears with his rent asked Kashmiri for a loan but he did not get it. This was shortly be-fore the murder. The accused is a Durwan who is in charge of a school at No. 182, Linton Street. It appears that his duties were to guard the school premises at night. On 19th May last at about 11 P.M. the accused was heard shouting 'chor' 'chor.' A crowd quickly collected outside the school premises and questioned the accused. According to the evidence of the witnesses who say that they came there on hearing these shouts the accused told them on being questioned that the thief was upstairs. When they wanted to go upstairs to see where the thief was the accused told them that the thief was dead inside a box. Thereupon some of these persons including Stanley Mitra and Profulla Ghosh went up and found the body of the deceased Kashmiri Buddha inside a large wooden box which was used for the purpose of storing a harmonium. The lid was opened by Jit Lal. The medical evidence shows that on the body of the deceased there were four incised wounds all severe, one was on the neck, another on the top of the head, one on the left side of the face near the eye and another on the left cheek. The evidence is that death was due to these injuries and that it may have been caused by a sharp-cutting weapon like a kukri.
2. On the police being informed the case was investigated and the accused was sent up together with Dhan Bahadur. The evidence against Dhan Bahadur consisted of a foot-print expert's evidence. We need not deal with that evidence as we are not concerned with the case of the accused Dhan Bahadur. So far as Jit Lal is concerned, the evidence admittedly is purely circumstantial and what we have to decide is whether the circumstances proved were such that there could be no reasonable conclusion except that the accused was guilty of murdering Kashmiri Buddha. We do not think that the circumstantial evidence is of this nature. The main evidence against the accused is that of Stanley Mitra, his friend Profulla Ghosh and the witnesses who came there on hearing the accused's shouts. We are not prepared to say that the jury were unreasonable in not accepting their evidence in every respect. The story told by them as to the conduct of Jit Lal appears to us to be such that the jury would be entitled to disbelieve it. They say that Jit Lal told them that the thief had come into the school and that when they wanted to see the thief he told them that the thief was lying dead inside a box. On the other hand it was suggested on behalf of the defence that the accused said that murder had been committed and that he asked the babus to help him in the matter. It seems to us very improbable that the accused could have made the statement attributed to him by Stanley Mitra, Profulla Ghosh and the other witnesses. In this connexion it should be remembered that no blood stains were found on the person of the accused or on his clothes. Now, if the accused had committed the murder and put the deceased into the box, he would most certainly have blood stains on his person or clothes. He must therefore have changed his clothes and washed his hands in order to remove all traces of blood. Then the accused must have decided to create evidence in his favour by raising an alarm. He had time to think over matters. That being so, it is extremely difficult to believe that he would behave in the stupid fashion in which he is alleged to have behaved. The jury were therefore entitled to disbelieve these witnesses and to accept the defence version of what the accused said and did.
3. There was also some evidence given by one Ganesh Shaha, who said that he saw the accused leaning out of the school verandah at about 7-30 P. M. on that day and that he heard groans from the house after the accused had entered into a room by the side of the verandah. Now the evidence of this boy has not been relied upon by the learned Judge because he stated before the committing Magistrate that he could not recognize the person who was standing on the verandah, whereas before the jury he stated that he recognized the man as Jit Lal whom he knew from before. This evidence is therefore of no weight against the accused. The learned Judge has commented upon the fact that the accused has given no explanation of what he was doing between 8 or 9 P.M. and 11 P.M. and he says that this is a circumstance which may be considered against him. The case for the prosecution is that the accused usually went to the school at 8 or 9 P.M. and slept there. The learned Judge says that if Kashmiri had been killed by somebody else in the school premises the accused, Jit Lal, would have discovered it at about 8 or 9 P.M. when he went there. The fact that he said nothing till 11 P.M. is, according to the learned Judge, an incriminating circumstance. Now, there is no evidence at all that on that particular night the accused went to the school premises between the hours of 8 or 9 P.M. There is no credible evidence to show when he went there. The accused was examined by the learned Judge according to the provisions of Section 342, Criminal P.C., but he was not asked a single question regarding this matter. The object of an examination under Section 342 is for the purpose of enabling the accused to explain circumstances which appear against him. If the learned Judge considered that an explanation was necessary regarding this matter it was his duty to have placed the matter before the accused and to have asked him whether he wished to give any explanation. It seems to me to be extremely unfair for a Judge to rely upon a circumstance as being incriminating without giving the accused any notice of it and without giving him an opportunity of explaining the circumstance. The accused may have had any number of reasons to give as to why he did not go to the school on that night at 8 or 9 P.M.
4. The circumstances established in this case are in our opinion capable of various interpretations consistent with the innocence of the accused. The accused may have let out these rooms that night to the deceased for a few hours. The deceased may have gone there with some one else and it may be that this person for some reason or other killed the deceased. The accused came later on to take over the rooms and finding the body of the deceased in the box, raised the alarm. This is a reasonable inference which may be drawn from the circumstances proved. There may be similar other explanations of the circumstances which would be consistent with the innocence of the accused. We consider that the jury were justified in coming to the conclusion that the circumstantial evidence was not of such a nature as would justify them in coming to the conclusion that the accused was guilty. We accept the verdict of the jury and acquit the accused: we direct that he be set at liberty forthwith. The reference is rejected.
5. I agree. After going through the evidence I can only say that I am not convinced that this murder was committed by the accused; in fact, I very much doubt whether it was.