C.C. Ghose, J.
1. In this case, the only point that has been argued on behalf of the appellants is that the jury did not after the delivery of the Judge's charge to the jury, sit together in their retiring room during the whole of the time taken for their deliberations and that, therefore, the accused have been deprived of the benefit of the joint deliberation of the jury before their verdict was taken. Now, the undisputed facts are as follows : The learned Judge concluded his charge to the jury at about 3-30 p.m. on 16th September 1929. The jury who were nine in number then retired to consider their verdict. At about 4 p.m., five of the jurors came out and sat in Court. The rest of the jury i.e., the remaining four jurors stayed in the retiring room till 4-30 p.m. and then came out and sat in Court. The learned Judge then proceeded to take the verdict of the jury. The case was under Sections 302, 302/149 and 120-B, I.P.C. What happened after the jury had re-assembled together appears from the following:
Verdict of the jury
Q. - Are you unanimous?
A. - No.
Q. - What is the majority verdict?
A. - Eight of us find all the accused guilty under Section 301, I.P.C., part 2 read with Section 14?, I.P.C
We are all unanimous that the accused are not guilty under Section 120-B, I.P,C., and that they are not guilty under Sections 302 and 302/149, I.P.C.
(Sd.) K.K. Dutta,
2. The learned Judge convicted all the accused, who were 15 in number under Sections 304, I.P.C., part. 2, read with Section 149, I.P.C., and sentenced the accused other than three to undergo rigorous imprisonment for three years and as regards throe of the accused to undergo rigorous imprisonment for one year. Mr. Chatterjee argues that the appellants were entitled to have the benefit of the joint consideration and consultation of all the jurymen before the verdict was returned and that in the events that happened his clients have not had that benefit. He argues further that if what happened in Court is allowed the raison d'tre of a trial by jury will have disappeared.
3. The learned advocate, who appears for the Crown, does not challenge any of the facts set out above. Indeed, they cannot be challenged because it appears that the accused put in a petition before the learned Sessions Judge then and there drawing attention to what had happened. In these circumstances, we have had to consider whether the verdict of the jury can be allowed to stand. It is elementary that after the conclusion of a trial the jury are not allowed to separate until they have considered and returned their verdict. The trial was by a jury composed of nine persons and unless and until it is shown that all the jurors have taken part throughout in deliberating upon what their verdict should be, the assent of all the jurors to a verdict pronounced by the foreman cannot be conclusively presumed. In this case, it may be said that the verdict was delivered by the foreman in the presence and hearing of all the jurors but that is not enough If the jurymen were not able to come to a decision or agree upon a verdict before retiring then the law requires that they should retire to consider their verdict and it follows that the should all be in their retiring room together during the whole of the time between the moment of their retirement and the moment when their verdict is taken by the learned presiding Judge. In England it has been held from very ancient times that the jury, when once enclosed for deliberation cannot separate without the special permission of the Court : see in this connexion Archbold's Criminal Pleadings Edn. 26, p. 210 and the case of R. v. O'Connel 1 Cox. C.C. 410. It is, quite true that in England it used to be the rule that the jury were not even allowed to go to their homes until the verdict was delivered if the deliberation should have extended over two days. She law has been amended in this particular in England. But it has never been held that during the process of their deliberation they can go about in any manner they like. It is obvious that the rule against separation of the jury has a great deal of common sense in it and in our opinion it should be strictly adhered to. In this view of the matter, much as we regret the result the verdict of the jury and with it the conviction and sentence must be set aside and the matter must go back for retrial according to law.
4. I agree.