Guha Ray, J.
1. This Reference under Section 307(1) of the Code of Criminal Procedure made by the Sessions Judge of Midnapore recommends the acquittal of Manindra Nath Das and Ananda Mohan Das who were put on their trial along with another, namely, NarayanMahato, in connection with the alleged murder of Kulabala Dassi, widow of Khandu Das. Manindra was charged under Section 302 I. P. C., Ananda under Section 302 read with Section 109 I. P. C. and Narayan Mahato also was charged under Section 302 read with Section 109 I. P. C. The Jury unanimously found Narayan Mahato not guilty of the charge against him and the learned Judge accepting that verdict acquitted him. The Jury found Manindra Das guilty under Section 304 Part I of the I. P. C. and not guilty under Section 302 I. P. C. and Ananda Mohan Das was found guilty under Section 304 Part I read with Section 109 I. P. C:
2. The case for the prosecution briefly is that Khandu Das, husband of Kulabala Dassi is said to have been murdered sometime in May 1957 and in that connection Manindra Das and his brothers Debendra and Phanindra were arrested. Manindra was released on bail on the 5th Asar 1364 B.S. corresponding to the 21st June 1957. It is said that Kulabala was a valuable witness for the prosecution in that case. Manindra is alleged to have told Jnanada, mother of Khandu immediately after his release on bail that Kulabala would be put an end to as her existence is prejudicial to their safety. Then, on the 8th of Asar corresponding to 24-6-1957 at night when Lulu Das, a brother of Khandu along with his brother-in-law Bharat Mal went to attend a Jatra performance in the village of Fingabundh, the accused Manindra with the help of other accused persons is said to have strangled Kulabala to death and then to have left her dead body hanging by means of rope from a wooden peg on the backside of the wall of her room. Next morning Lulu Das and Bharat Mal came back at about dawn and when Lulu Das went to ease himself he found Kulabala hanging from a peg on the back-side of the wall of her room. At this time he also noticed the accused Manindra who is a potter by profession standing near his pottery shed and Manindra asked Lulu to take the body of their Boudi inside their house and when Lulu Das told him that he alone could not take the body inside the house, Manindra came along, helped him in taking down the body by cutting the rope and placing it over a Khatia on the verandah. He also suggested that the rope should be kept inside their Chal and further asked him not to tell anyone that he had helped in bringing down the dead body inside the house. Jnanada, the mother of Khandu who was sleeping on the same verandah as Kulabala herself claims to have heard her daughter-in-law groaning and also the voice of Manindra when he said that if she gave out his name, then he would kill her and her son as well. From that voice Jnanada recognized the presence of Manindra in their house and thereafter her daughter-in-law was tied and taken away from there but she did not see what happened later. The local Chowkidar and some of the villagers came to their house and were told by Lulu of what he knew. An information was given by Lulu at the Police Station and this is Ext. 1. In that statement all that Lulu said is that he returned from the Jatra performance in the small hours of the night and then in the morning after waking up when he was going out to ease himself he found Kulabala hanging with a rope round her neck from the wooden peg of the thatch behind her own room and that in order to ascertain whether she was alive he himself pulled down the body along with the noose made of rope and found that she was dead. Then his mother also came there running and saw everything. The Chowkidar also came and heard of everything. He further stated in this statement that the dead body did not contain any other mark except the mark caused by the noose, The cause of her death was not known. It was further mentioned that on being released on bail Manindra who had been sent for trial as one of the murderersof his brother Khandu came back home and unlike others of the village neither he nor anyone of his company came in the morning. Then the police came along and after a certain amount of enquiry a First Information Report was recorded by an A. S. I. on his own motion and that is Ext. 3. The reasons why at that stage the police suspected the death of Kulabala to be due to homicidal strangulation seem to be, first, that the post mortem report shows it to be a case of homicidal strangulation and secondly that the height of the woman was 3 cubits and a half, that is, 5ft 3' and the height of the peg from which the body was found hanging was about 4 or 4 1/4 cubits from the ground, that is, 6ft or 6ft 3' from which the Assistant Sub-Inspector of Police thought that the feet of the woman would touch the ground if she was hanging from that peg. The police sent up the three accused, namely, Manindra, Ananda and Narayan and then after a preliminary enquiry they were committed on charges under Section 302 and Section 302 read with Section 109 of the Indian Penal Code.
3. The defence of Manindra and Ananda was that they were not guilty and that they have been, falsely implicated through concocted evidence. It appears also to have been suggested on behalf of the defence that Kulabala might have put an end to ' her own life as a result of the chastisement she received from Jnanada on account of her reputed intrigue with Debeudra, Manindra's brother.
4. The evidence on which the prosecution rests is, first, that of Lulu Das, secondly, of Jnanada and thirdly, a statement by Narayan. According to Lulu Das about four days before the occurrence his mother Jnanada had told him that Manindra had said to his mother that Khandu was dead and it was no use keeping his wife living and he would finish her. Jnanada also says in her evidence that after coming out on bail Manindra told her that if Kulabala was alive there was no chance of their safety and so she should be killed. Then, there is the further statement of Jnanada that on the night of the occurrence her daughter-in-law and she herself were sleeping on the veranda on separate beds about 3 cubits from each other and that she woke up in the night on hearing her daughter-in-law's-groans and then she heard the voice of Manindra saying that if she gave out his name he would kill her and her son as well and thereafter her daughter-in-law was tied and taken away and she did not see what had happened later and then there is the statement of Narayan which is Ex. 4. This statement is to the effect that on the night of Sunday, presumably the night of the occurrence, there was a Jatra performance at Chainpore when Ananda and Manindra called him and took him to Bhatmore and while he was made to stand on the metalled road, Manindra and Ananda proceeded towards the house of Kulabala at about 12-30 or 1 a. m. There were also two other persons from Midnapore' with them and they too went towards the house of Kulabala. Manindra and Ananda and the two men from Midnapore returned in about half an hour and Manindra said that Kulabala had been finished and then all of them except Manindra returned to the Jatra performance. As far as this statement goes, it is clearly self-exculpatory and consequently cannot amount to a confession. The learned Judge by his order No. 3 dated 9-5-58 at page 7 of the Paper Book clearly held that this being a self-exculpatory statement of Narayan could not be treated as a confession and could be used only as an admission as against Narayan himself and it could not be used as evidence at all against the other accused, namely, Manindra and Ananda. There is no doubt that the learned Judge was perfectly right in this decisionof his. The Gentlemen of the Jury, therefore, had no right to take the statement of Narayan into consideration at all as against Manindra and Ananda.
5. That leaves us only with the evidence of Lulu Das and Jnanada. The first question the Jurors had to ask themselves was whether even if the whole of this evidence be accepted at its full face value, they could hold the accused guilty of the charges against them on the strength of this evidence. It is at once obvious that the only possible answer would have been in the negative, because what Jnanada states does not amount to anything like conclusive evidence of Manindra Das having strangled the woman to death, because there is no indication in her evidence of the part each of the accused took in the murder of the woman. Of course, if both of them were charged under Section 302 read with Section 34 of the Indian Penal Code that might have been another matter, because when it is proved that two or more persons committed a murder in furtherance of their common intention, then both would be guilty of murder irrespective of the part each played therein. But in this case there was no such charge and the only charge against Manindra was under Section 302 of the I. P. C. for having murdered the woman by strangling her to death and the only charge against the other two was under Section 302 read with Section 109 of the I. P. C. for having abetted Manindra in murdering the woman by strangling her to death. Jnanada does not claim to have seen anybody strangling her. All that she heard was the groaning sound of Kulabala and this groaning sound might have been the result of Kulabala being pressed as she was being taken from that room and she might have been strangled to death elsewhere than on the verandah. It is not the prosecution case nor does the evidence of Jnanada suggest that Kulabala was strangled to death on that very verandah and then her dead body was kept hanging from a wooden peg in the back-side wall of her own room. On the other hand, the evidence of Jnanada suggests that she was removed from that verandah, strangled elsewhere and then her dead body was kept hanging from the peg of the back wall of Kulabala's own room. Consequently, it is impossible to say on the evidence as this which of the accused actually strangled her to death and what part was played by each of the accused. In the circumstances, the charge against Manindra for having murdered the woman is hardly sustainable on the evidence as it is. Then, as against Ananda there is practically no evidence at all except the statement of P. W. 3 Gostha Behari Das who claimed to have attended the Jatra performance at Fingabundh on the 8th of Ashar at night, that Narayan and Ananda left the performance at about 10 or 10-30 p, m. and went out on the pretext of bringing a light and they returned 2 or 2 hours later. In cross-examination he says that the first Act of the performance was going on when they went out, Narayan and Ananda did the supervising work in the Jatra. Then P. W. 10 says that Ananda and Narayan were the Managers of the Jatra Party and although the Jatra started at 9 or 9-30 p. m. on the 8th of Ashar, Narayan and Ananda went to bring a light at about 8 p. m. and they returned about 2 or 2 hours later. Even if it be assumed that the evidence of these two can be taken at their face value, it does not go to prove the connection to Ananda and Narayan with the crime. It is at best a circumstance which might give rise to a certain amount of suspicion as against them but this fact if believed taken along with the statement of Narayan Das, Ext. 4, might incriminate both Narayan and Ananda, but then as already pointed out, the statement of Narayan is not admissible in evidence at all as against anybody except Narayan himself. Curiously enough the Gentlemen of the Jury acquitted Narayan and convicted Ananda, although the evidence as already analysed might go to incriminate Narayan to a larger extent than Ananda because Narayan on his own showing was asked by Manindri to stand guard on the metalled road when they were proceeding towards Kulabala's house and on their rut urn Manindra told them that Kulabala had been finished. Of course it may mean that Narayan had no knowledge at the time when he was asked to stand guard, as to what the intent to Manindra and his companion actually was and to this extent even he could not be held guilty on this evidence but how could Ananda be held guilty on this evidence? As against him there are only the statements of the two witnesses P. W.'s 3 and 10 which beyond raising a certain amount of suspicion cannot certainly sustain his conviction on a charge of murdering Kulabala. This at once shows that the Jury in this case did not consist of a body of men who can be said to be reasonable.
6. When the evidence of Jnanada and Lulu which constitutes the sole evidence as against Manindra is further analysed it will appear that the Jurors in this case were certainly not a body of reasonable men. Lulu said a number of things in his evidence in Court but then his first information report is completely silent on most of these things and the explanation offered by him is that he did not in the first information report mention what Manindra did in connection with the dead body of Kulabala, because Manindra had threatened him and the appearance of the police in their house later on emboldened him to come out with the truth. He distinctly states that what he had stated in the first information report was entirely false. At the same time the last part of the first information report distinctly shows that this at least could not have been due to the terror that Manindra's threats might have caused to him. When he says that Manindra on being released from bail after his arrest in connection with the murder of his brother came back home 5 or 7 days ago and unlike the rest of the village neither he nor anyone of his company came that morning to see the occurrence, he was obviously suggesting that Manindra had something to do with the crime. If as a matter of fact he wanted to be silent about Manindra's complicity, he could not have made the statement. Evidently then it is difficult to accept his statement that Manindra threatened him before he went to the police station. If Manindra did not actually threaten him there was no explanation whatever for his omission to state in the first information report of the part attributed to Manindra in his evidence, namely, that he helped Lulu in taking down the body of Kulabala and placing it on a Khatia. He introduced this statement presumably with the object of proving the complicity of Manindra in the crime, but even if it be accepted at its-full face value, it does not follow that Manindra had anything to do with the murder of Kulabala, for even though Mamndra might be totally unconnected with the murder of Kulabala, if it was a case of murder at all, he might as a neighbour have helped Lulu in taking down the dead body. Lulu introduces further the statement that it was at Manindra's request that he kept the rope concealed in the Chal and then produced it before the Assistant Sub-Inspector. Then there is the evidence of Jnanada. She says that she was sitting on the verandah when her son Lulu and her son-in-law returned from the Jatra it about dawn and thereafter his son went out of the house to ease himself. She does not tell the Court that she informed his son or son-in-law at once of what she had heard in the night nor does she tell them that her daughter-in-law who was sleeping with her on the verandah was no longer there.
On the other hand, it is clear from the evidence that it was a pure accident that Lulu discovered, as he wits going out to ease himself, Kulabala's dead body hanging from a peg in the back wall of her own room. It is pertinent to enquire why Jnanada did not speak of what she had heard in the night when her son and her son-in-law returned home, if what she states represented the truth she would have at once cried out to them what had happened and told them at once that her daughter-in-law was no longer to be found in the verandah. Her silence, therefore, is mysterious. Another mysterious thing is that her son-in-law Bharat Mal does not appear to have come back to the house even though the dead body of Kulabala is found hanging from the wall. It is inexplicable why if Manindra had actually threatened to put an end to Kulabala about 4 days before the occurrence, Lulu does not mention this in his first information report. It is further in evidence that alter the deposition of Lulu in Court on 6-5-1958 she as well as Lulu were taken to the house of the Doroga. This again is something on which one must needs be surprised.
7. Another fact which has got to be mentioned is that it is admitted by Jnanada and Lulu that Kulabala was reputed to have had an intrigue with Debendra and that, Kulabala herself had been taken to the thana in connection with that murder. There is no evidence whatever to show what evidence she gave in that connection, so that one docs not know whether Manindra had actually any motive to murder her. In these circumstances, the evidence iscertainly not such as can induce a reasonable body of men to convict Manindra under Section 302 or for the matter of that under Section 304 Part I of the I. P. C. and as I have already pointed out there is no evidence at all as against the other accused.
8. A question now arises whether we are entitled in such a case to interfere with the verdictof the Jury. The Privy Council in RamanugrahSingh v. Emperor has clearly analysed the scope of a referenceunder Section 307 of the Code of Criminal Procedureand in doing so it has observed as follows:
'If the jury have reached a conclusion on the evidence which a reasonable body of men might reach, it is not necessary for the ends of justice that the Sessions Judge should refer the case to the High Court merely because he himself would have reached a different conclusion on the facts, since he is not the tribunal to determine the facts. He must go further than that and be of opinion that the verdict is one which no reasonable body of men could have reached on the evidence. The powers of the High Court in dealing with the reference arc contained in Sub-section 3. It may exercise any of the powers which it might exercise on an appeal, and this includes the power to call fresh evidence conferred by Section 428. The court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury, and then acquit or convict the accused. In their Lordships' view the paramount consideration in the High Court must be whether the ends of justice require that the verdict of the jury should be set aside. In general, if the evidence is such that it can properly support a verdict either of guilty or of not guilty, according to the view taken of it by the trial court, and if the jury takeone view of the evidence and the judge thinks that they should have taken the other the view of the jury must prevail, since they are the judges of fact In such a case a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion of the jury. If, 'however, the High Court considers that on the evidence no reasonable body of men could have reach-ed the conclusion arrived at by the jury, then the reference was justified and the ends of justice require that the verdict be disregarded',
This decision of the Privy Council was approved by the Supreme Court in the case of Akhlakali Hayatalli v. State of Bombay, : 1954CriLJ451 and Ramyed Rai v. State of Bihar, : AIR1957SC373 . As we have already found that no reasonable body of men could have on the evidence on the record brought in a verdict of guilty against Manindra under Section 302 or even under Section 304 Part I of the Indian Penal Code or against Ananda under Section 304 Part I read with Section 109 of the Indian Penal Code, the verdict of the Jury must be set aside, the Reference accepted and Manindra and Ananda both acquitted of the charges against them. The accused are discharged from the bail bond.
N.K. Sen, J.
9. I agree with my Lord that this Reference must be accepted bat I would like to add a few words. At the outset it will be worth while to refer to the decision of the Privy Council in where it was pointed out by their Lordships of the Judicial Committee of the Privy Council that Section 307 Cr. P. C. was Intended to guard against a miscarriage of justice through Jurors and not to enable the Sessions Judge or the High Court to deprive Jurors acting properly within their powers of the right to determine the facts conferred upon them by the Code. No Reference under Section 307 Cr. P. C. can be made merely because a Judge himself would have reached a different conclusion on facts since he is not the Tribunal to determine the facts. It has also been held by the Supreme Court in the case of : 1954CriLJ451 wherein their Lordships had approved of the Privy Council decision cited above that to justify a Reference the verdict should be such as no reasonable men would come to.
10. Mr. S. N. Banerjee, in support of the Reference has urged that in the case of the accused Manindra Nath Das, the evidence in the case, whatever might be its value, is such that no reasonable body of men would have accepted in order to return the verdict which they did in the present case. So far as the other accused viz. Ananda Mohan Das is concerned, his contention is that the entire evidence against him, even if believed, does not make out any offence at all.
11. Mr. J. M. Banerjee, appearing on behalf of the State argues that so far as the first accused Manindra Nath Das is concerned there is some evidence which the Jury believed and on this evidence a verdict as returned by the Jurors was possible verdict and therefore the present reference so far as Manindra Nath Das is concerned was not justified. He has however conceded that as regards the other accused Ananda Mohan Das the entire evidence against him raises at least a suspicion and falls far short of proof. This concession made by Mr. J. M. Banerjee leads to the position that the unanimous verdict of the Jury in one case according to him is reasonable and the evidence against the other unreasonable and perverse. I have no doubt that if the evidence against Ananda Mohan Das is nothing more than a suspicion, the verdict returned by the Jury as far as Manindra Nath Das is concerned must be examined with reference to the evidence in the case. In the case of (S) : AIR1957SC373 their Lordships of the Supreme Court held that where in a Reference under Section 307 Cr. P. C. the High Court did not consider the entire evidence which was on the record before it, it clearly acted in violation of the provisions of Section 307(3) of the Code. Evidence has been placed before us by the respective Advocates and we have ourselves considered the evidencegiving due weight to the opinion of the Judge andto the unanimous verdict of the Jury. The prosecution has sought to build up its case on the evidence of P. W. 1 Lulu Das and his mother Jnanada, P. W. 2. These two witnesses, as has been pointed out by My Lord, are demonstrably lying witnesses without having apparently any respect for truth. Mr. J. M. Banerjee argues that although on one occasion a false statement had been made by Lulu Das, P. W. 1, the said witness in the court of session explained under what circumstances such a false statement had to be made and the witness having boldly confessed the fact there is no reason to suppose that he cannot be believed under any circumstances. Mr. Banerjee argues that it is not a correct proposition of law to state that if a witness lies on one particular point his entire evidence should be discarded.
12. I am, however, unable to accept the argument of Mr. Banerjee. To found a conviction on a charge of murder on evidence of witnesses of the description of P.Ws. 1 and 2 would be simply outrageous. To add to this it us surprising that Bharat Mal who according to prosecution was sleeping in another cot of the same house was not examined and the Public Prosecutor never thought of offering any explanation for his non-examination. This in my opinion would cast a good deal of doubt upon the bona fides of the prosecution case. So far as P.Ws. 1 and 2 are concerned, the reason for their introduction of a new story untold yet either before the Police or before the Committing Court is not far to seek, P. W. 1 Lulu, a boy of 19 years admitted in his cross-examination that he stayed in the house of the Police Officer N. N. Sarkar. P. W. 19, at Midnapore while he came to depose in the lower Court. P. W. 2 Jnanada stated that 'after the deposition of Lulu in Court yesterday, he was taken along with her to the house of the Daroga'. P. W. 19 Nripendra Nath Sarkar, a Sub-Inspector of Police, was in charge of investigation. His evidence shows that he was coming to Court every day since the hearing of the case started. He has, however, denied that he had taken the witnesses to his house. The comment as made by Mr. S. N. Banerjee that it was this investigating officer who had tutored the witnesses to depose in a particular manner seems to me to be well justified. I cannot but record my strong disapproval of the conduct of the Investigating Officer N N. Sarkar in the present case. It is beyond one's comprehension that an investigating officer would take the witnesses to his house for any purpose whatsoever. The object of an investigation has never been and can never be the securing of a conviction by any means. I have always understood that the duty of an investigating officer is to investigate into the case and to find out if he can secure the offender or offenders connected with the crime and to bring them to justice. It is never his business to fabricate or to suggest statements or evidence in the case. The sooner the investigating officers rid themselves of any such ideas the better it would be for the administration of fair justice;.
13. Having considered the entire evidence, I have not the least doubt in my mind that this is a case in which no reasonable body of men should have returned a verdict of guilty against any of , the accused persons. It may further be mentioned that there was another accused person on trial, viz., Narayan Mahato who was unanimously found not guilty by the Jury. The learned Judge accepted this verdict and acquitted him. Mr. J. M. Banerjee states and we have also examined the evidence that the evidence so far as Ananda Mohan Das is concerned is exactly of the same type as against Narayan Mahato who has been found guilty by the Jury. Theverdict of the Jury cannot but be characterised as perverse when it is observed that upon the same evidence they thought it fit unanimously to convict in one case and to acquit in the other. A large number of witnesses were examined on behalf of the prosecution in this case. It must be observed that most of them were either formal or their testimony useless The main prosecution case being built upon the evidence of P.Ws. 1 and 2 mentioned above, I am clearly of the' view that this is a case in which the verdict of the Jury, if allowed to stand, would lead to a gross failure of justice.