1. This is a reference under Section 307, Criminal P.C. by the Additional Sessions Judge of Burdwan in connexion with a dacoity case which was tried by him in which the jury by a majority verdict of 4 : 1 were of opinion that the accused were entitled to the benefit of the doubt. The learned Additional Sessions Judge being of opinion that the verdict was erroneous and wholly against the weight of evidence has referred the case to this Court.
2. Under the provisions Section 307 of the Code we have to consider the entire evidence, and, to decide after giving duo weight to the opinion of the Sessions Judge and the jury, whether the charge was made out against the accused, and whether the verdict was right or not. It has not been the practice of this Court according to the trend of decisions on the subject to interfere with the verdict of a jury unless it is shown that the verdict was manifestly wrong and that there were no sufficient materials to justify it.
3. The evidence which was adduced in this case by the prosecution consisted of : (1) confessions made by each of the accused Balai Ghosh and Motleb Sheikh of their guilt, these confessions having been subsequently withdrawn in the committing Court; (2) the evidence of Satya Bala Dasi and her father Fakir Jelia, who have deposed as eyewitnesses to the dacoity, and have each of them identified one of the accused, Satya Bala having identified Motleb Sheikh and her father having identified the other accused Balai Ghosh; (3) thirdly in addition to this evidence there is as against the accused Balai Ghosh, the evidence that certain ornaments or pieces of ornaments, Bxs. 9 to 12, wore found on search in his house.
4. Now so far as the confessions are concerned there is nothing to prevent a confession although retracted from being given effect to as against the maker. But where the confession has been retracted the general rule is that that independent corroboration of the confession should be required in order that the Court may be satisfied that the confession is true. In view of the fact that both these confessions were promptly withdrawn when the accused came before the committing Magistrate we think that it would not be altogether safe to rely entirely upon them in the absence of any independent evidence to corroborate them. It becomes necessary therefore to examine the evidence in order to see how far the confessions are corroborated.
5. A very important part of the case consists of the evidence of Satya Bala Dasi and her father Fakir Jelia, and in that connexion the crucial point is whether Fakir Jelia was in his daughter's house on the night of the dacoity. If these witnesses have spoken the truth, and if their identification of the two accused is accepted, then this would undoubtedly furnish valuable corroboration of the truth of the confessions. But the evidence in the case and the facts and circumstances seem to give rise to the considerable doubt as to whether Fakir was at the place of occurrence on the night in question, as he alleges. In the first information, which he lodged before the police at 8-30 a.m., on 19th March 1928, ho stated that he was not in his daughter's house when the dacoity took place, and he gave an account of the dacoity which purported to be as described to him by his daughter; and further ho concluded by saying that he had come to his daughter's house at noon on the day following the dacoity, and having hoard the details of the occurrence he had come to the Thana to give information. In view of the explicit statement by Fakir Jelia that he was not present at the time of the dacoity it is difficult to accept his statement in evidence that. he was there and saw what took place. The explanation which he has given for this change in his story is that on the way to the Thana the Chowkidar told him to inform the Daroga that he (Fakir) had not been in his daughter's house at the time of the dacoity. Now the Chowkidar Moti Chang is a man aged about eighty years and it is difficult to imagine any reason why he should have given any such instruction to the informant. The learned Sessions Judge seems to have been of opinion that the Chowkidar was not a reliable witness and had suppressed the truth. There does not, however, seem to be any sufficient ground for such a conclusion.
6. There is one significant fact in connexion with the question, which as I have said is a very important question, as to whether Fakir was or was not present at the time of the dacoity, and that is the delay which took place in the lodging of the first information. The occurrence took place at midnight on 17th March and the first information was not lodged until 8-30 a.m., on 19th March, the police station being about 14 miles distant from the place of occurrence. If Fakir was present at the time of the occurrence it seems to be hardly probable that he would not have lodged the information sometime during the course of the following day, especially in view of the fact that he is not alleged to have been injured in any way. Dacoity is a serious matter, and, if he was there as alleged, the natural course would have been to lose no time in going and giving information to the police. On the other hand the delay in lodging information is consistent with the other version that Fakir was not present at the time of the occurrence, and that he cams on the following day about midday after hearing of the dacoity, and then having learnt the particulars went to the Thana. There is therefore considerable doubt whether Fakir Jelia really was a witness of the occurrence, and although there is the evidence of witnesses who speak to his presence, in view of his own clear statement in the first information that he was not there, and the circumstances to which I have referred above which supports that statement, the only conclusion possible appears to be that he did not see the dacoity, and that he has been introduced as an eyewitness for obvious reasons. If that view is accepted then, of course, it materially affects the evidence of Satya Bala Dasi also, because she has throughout described her father as having been present and has given details of what he did. If those statements are untrue, no reliance can safely be attached to her evidence as a whole.
7. Then in connexion with the identification of the accused there is the fact that it is mentioned in the nest information that the dacoits wore Malkocha and Galpatto, and that being so their identification would naturally be a matter of extreme difficulty.
8. As regards the accused Balai Ghose there is the further evidence as to certain ornaments and pieces of ornaments, which are alleged to have been found at his house. With regard to this part of the case it seems to me that the evidence as to the house search is not altogether satisfactory. The section of the Criminal Procedure Code relating to such searches is Section 103 which lays down that before making a search the officer about to make it shall call upon two or more respectable inhabitants of the locality to attend and witness the search. The object of the section is presumably to obtain as reliable evidence as possible of the search, and to exclude the possibility of any concoction, or malpractice of any kind.
9. In this instance the witnesses who have been examined to prove the search are the Sub-Inspector of Police, witness 12 for the prosecution, and a witness named Probodh Chandra Gossain, wit ness 11 for the prosecution, who is described as a cultivator. There can of course be no harm in the Police Officer, who made the search, being called as a witness at the trial, but an officer who is connected with the investigation cannot be deemed to be an entirely satisfactory witness for the purpose of proving the search. It was incumbent upon the police to, at any rate, make some attempt to comply with the provisions of the section. It is possible that there were no persons living near the place of occurrence who would fulfil the definition of respectable inhabitants used in the section. In that case, however, some evidence to that effect ought to have been given. Furthermore it appears that although two persons apart from the Sub-Inspector were called as witnesses to the search, and though these persons signed the search list, only one of these persons was called as a witness at the trial. No explanation appears to be forthcoming of the omission to examine the other witness and there can be no doubt that it was the douty of the prosecution to produce him as a witness at the trial.
10. Taking the evidence as a whole and taking into consideration all the facts and circumstances it seems to me that a reasonable doubt does arise as to the guilt of the accused, and that it cannot be said that the jury were not justified in giving the benefit of that doubt to the accused. Certainly it cannot be said that their decision was in any sense perverse.
11. The result, therefore is that this reference must be rejected and the accused are acquitted and released.
12. I agree.