1. In this case six persons were put upon their trial before the learned Assistant Sessions Judge of Pabna on charges under Section 30/4 read with Section 34, I.P.C., Section 304= read with Section 149 and Section 147 of that Code. Appellant, Rafat Sheikh, was convicted by the jury under Section 304, read with Section 34, and on that charge he was sentenced to seven years' rigorous imprisonment; appellant 2, Sonaulla, was convicted under Section 304 read with Section 34 and on that charge was sentenced to five years' rigorous imprisonment; appellant 3, Bhasa Sheikh, was convicted under Section 304 read with Section 149 and sentenced upon that charge to four years' rigorous imprisonment and appellants 4 and 5, Kefat Sheikh and Mianullah Sheikh, were convicted under Section 304 read with Section 149 and upon that charge sentenced to three years' rigorous imprisionment. Accused 6, Moyezuddin Sheikh, was acquitted. Upon the charge under Section 147, I.P. C, all the accused were in the first instance acquitted by the jury in that the jury upon that charge, when they were asked to say what was their verdict under Section 147 said: 'All are not guilty under Section 147.' It appears that the learned Judge at the trial immediately appreciated the fact that verdict of the jury with regard to Section 147 was inconsistent with the verdict which they had already given with regard to the other charges. It appears that he thereupon invited the learned Counsel for the prosecution and for the defence to make their submissions to him on the question, whether or not be ought to re-charge the jury in order that they might arrive at a proper verdict as regards the charge under Section 147. In the petition of appeal before us in para. 8 it is represented that after the jury had given their first verdict upon the charge under Section 147, the Judge held a discussion with the Government Pleader, Mr. Bhaumik, for an hour. The paragraph further states that certain authorities were quoted-Hamid Ali v. Emperor : AIR1930Cal320 and other cases were placed before the Court-and that thereafter the learned Judge re-charged the jury, who again retired to consider their verdict. It is further complained in this petition of appeal that the Hindu jurors knew English and the appellants had the grievance that those of the jurors, who knew English, followed and understood the discussion that took place between Mr. Bhaumik and the learned Judge. Now that paragraph manifestly is not an accurate account of what in fact took place at the trial and it is now conceded by Mr. Ray, who appears for all the appellants before us, that what in fact took place was that both the learned Counsel, that is to say the advocate for the prosecution and the advocate for the defence took part in the argument before the learned Judge and the proceedings as regards that part of the matter was in proper form of law. Mr. Ray has founded an argument upon the basis of para. 8 of the petition in the nature of a preliminary objection. Mr. Ray has invited us to hold that because the learned Judge was not minded to accept what was obviously and admittedly an inconsistent verdict with regard to Section 147, he ought not to have made any further charge to the jury, but to have dealt with the matter by referring the case to this Court for consideration. It appears to me that there is an authority of this Court which is very much in point, and indeed it disposes of the argument put forward by Mr. Ray-the case of Hamid Ali v. Emperor : AIR1930Cal320 . In that case the learned Chief Justice in dealing with an analogous situation said this:
If he (the Judge trying the case) thought it fairer and clearer and simpler to re-charge the jury on certain specific points and to tell them to go and get their heads clear on the subject and give a proper verdict, there is nothing in the Code against that. The Judge put the matter in a much better position than it would have been if he had endeavoured to cross-examine the jury, which as a matter of fact, means cross-examination of the foreman.
2. In the present instance Mr. Ray has frankly admitted that the verdict of the jury with regard to the charge under Section 147 was in point of fact obviously inconsistent with the decision, which the jury had already expressed in connexion with the other charge against the accused. We are of opinion that the learned Judge adopted a reasonable and proper course in order to prevent having on the record a verdict which in the circumstances of the case would be an absurd one. (After discussing the evidence, the judgment concluded). Looking at the charge as a whole, we are quite satisfied that there is no such material misdirection as would justify us in interfering with the verdict of the jury. The appeal must accordingly be dismissed. Those of the appellants who are on bail must surrender to their bail and serve out the sentence imposed upon them.
S.K. Ghose, J.
3. I agree.