C.C. Ghose, J.
1. This is a reference under Section 307, Criminal P. C., in a case which was tried before the learned Sessions Judge of Faridpur and a jury under Sections 302 and 460, I. P. C. The accused were four in number and ' their names are as follows: Nashai Sardar, Shaharbanu, Sukur Bepari and Yusuf Dhali. The jury by a majority of 6 to 3 found Nashai Sardar not guilty, and as regards the other three accused the jury by a majority of 5 to 4 found them not guilty. The learned Judge was not able to agree with the verdict of the majority of the jury and has, therefore referred the case to this Court for final orders.
2. The case for the prosecution, shortly stated was as follows: The deceased was one Nazir Bepari. He had married one Momina, the daughter of the accused Shaharbanu. That was some 4 or 5 years ago, but the married life of Nazir and Momina was not happy; there were constant quarrels. Apparently shortly before the date of occurrence it had been suggested to Nazir that he should divorce his wife Momina and release her altogether. The suggestion did not find favour with Nazir. On the date of the occurrence which was 26th May 1931, Nazir and his wife Momina had spent the evening in the house of Shahar Banu, Nazir's mother-in-law, where they had their evening meal. They came back some time before midnight and it is said that Nazir and his wife Momina were sleeping in the verandah of the northern hut. Nazir's mother Nurjan and his sister Maimannessa were sleeping in the western hut. Nurjan is an old woman and it is said that she is partially blind. A little after midnight shouts of 'Malo' 'Malo' came from the northern hut and Nurjan and Maimannessa were awakened. Nurjan in her agitation stumbled and rolled on to the courtyard. As regards Maimannessa she ran to her brother's hut, and it is said that she saw six persons hacking her brother with does variously called Sandaos and Chen Daos, i.e., date, palm tapping daos. These persons according to Maimannessa, were Shaharbanu, Nashai Sardar, Sukur Bepari, Yusuf Dhali, Messer and Momina. The hour of the occurrence has not been ascertained with any definiteness but it was some time after midnight. At about this time five persons who were sleeping in a neighbouring house came running there attracted by Nazir's cry. It is said that when they arrived there they saw the abovementioned six persons just opposite Nazir's hut, some of them just emerging therefrom with daos in their hands. The names of these persons will be mentioned presently. It is said that they entered Nadir's hut and found him with several incised wounds on various parts of his body. The names of these neighbours are Aijuddi, Belan Bepari, Amir Bepari, Abdul Howladar and Mofijuddi. According to these neighbours Nazir was alive and conscious when they came to Nazir's hut and on being questioned Nazir said that the persons who had attacked him with daos were Shaharbanu, Momina, Nashai Sardar, Yusuf Dhali and Sukur Bepari and Mosser. Of the neighbours whose names had bean mentioned Aijuddin and Belan Bepari went to call the chaukidar Radhakrista.
3. It may be said in passing that Radhakrista was not the chaukidar of the mohalla in which Nazir's hut was. Radhakrista and a neighbour of his, whose name is Parikhit, went to Nazir's hut, and of the two men Aijuddi and Belan Bepari one went to fetch a local doctor, Bepin Shil, and the other went to hire a boat to convey Nazir to Madaripur. Radhakrista and Parikhit according to what they had stated in Court went to Nazir's hut. They found Nazir still alive and conscious, and on being questioned by Radhakrista, Nazir named four persons as having cut him with daos, namely, Shaharbanu, Sukur, Yusuf and Messer. According to Radhakrista after mentioning the four names Nazir gave a convulsive kick and became unconscious. He died in the early hours of the morning. Aijuddi, one of the five persons who ran to Nazir's hut started for the thana fairly early in the morning at about nasta time and lodged information with the daroga. The daroga came to the place of occurrence and started investigation. He looked for all the accused persons whose names were said to have been mentioned by Nazir, but could not trace them. On 16th June 1931, the charge sheet was submitted against the four accused, i.e., Nashai Sardar, Shaharbanu, Sukur Bepari and Yusuf Dhali. The four accused persons, whose names have just been mentioned, were arrested on various dates between 16th June 1931 and 22nd February 1932, and after investigation before the committing Magistrate these persons were committed to take their trial in the Sessions Court under Sections 302 and 460, I. P. C. Messer is said to be still absconding. The trial took place before Mr. Sen, the Sessions Judge of Faridpur. Judging from the charge delivered by the learned Judge to the jury it is apparent that the learned Judge did 'not spare any pains whatsoever in canvassing all the various points which arose during the . course of the trial analyzing the evidence with great minuteness and presenting before the jury a very careful summary of the evidence adduced by the prosecution. But the jury, as stated above by a majority took the view that the accused were not guilty.
4. Now in this case which has been argued before us by the learned Deputy Legal Remembrancer on behalf of the Crown with his usual ability and zeal, it has been pointed out to us that the view taken by the majority of the jury is unsupportable upon an impartial consideration of the evidence adduced in the case and that making all allowances for the criticizms levelled by the defence against some of the prosecution witnesses the residium of the evidence would have no possible doubt that the case for the prosecution had been proved to the hilt and that in that state of the record the learned Judge was not only fully justified in making this reference to this Court but that he should not support the verdict of the jury but should either convict the accused of being guilty of the offences charged against them or pass such other or further order on these premises as to this Court may seem fit and proper. On the other hand Mr. B. C. Chatterjee, who appears for the accused, maintains that having regard to the numerous discrepancies in the evidence adduced on behalf of the prosecution and having regard to the character of the evidence given in particular by the witnesses Aijuddi, Belan Bepari, RadhaKrista and Parikhit, the majority of the jury were abundantly justified in coming to the verdict which they did and what the learned Deputy Legal Remembrancer called the residium of the evidence when properly analyzed in the light of what was stated in the first information could not and did not convey to any unprejudiced mind the conviction that what the rest of the witnesses had stated, namely, what according to them had been stated by Nazir shortly before he died was true and could be acted upon. In this state of affairs it is our duty to examine the evidence of the witnesses for the prosecution with care and minuteness and to find out for ourselves whether the prosecution story is one from which a reasonable conclusion against the accused could be drawn having regard to the striking nature of the evidence given by the medical gentleman who had held the post mortem examination on the body of Nazir. (After considering the evidence, his Lordship continued). In this state of the record and without unduly elaborating the points already referred to, I am of opinion, on a careful consideration of the cumulative effect of the evidence that it is difficult to describe the verdict of the jury in this case as perverse. In cases under Section 307, Criminal P.C., where the Judge takes one view and the jury takes another, it is our primary duty before we interfere to satisfy ourselves that the jury on a fair consideration of the evidence in the case has taken a perverse view and that the jury's verdict ought not to be allowed to stand. This is by no means a hard and fast rule. The Judge's view has got to be given the same weight as the verdict of the jury. But when after consideration of the view of the learned Judge who had also before him the evidence in the same manner as the jury had, we proceed further to consider the suspicious circumstances present on the record, then it is our duty in sifting the evidence for ourselves and in coming to a conclusion in the matter, in the first instance, to ask ourselves whether the jury's verdict can be allowed to stand.
5. If we reach the conclusion that the jury's verdict can be allowed to stand, there is an end of the matter. Now we have, after a careful consideration, come to the view that the jury's verdict in this case should be allowed to stand and therefore, we ought not to interfere.
6. The result therefore is that the accused are acquitted of the offences charged against them and they should be released from custody forthwith.
7. I agree.
8. I agree.