1. This case comes before us on a reference made by the Sessions Judge of Jessore under the provisions of Section 307 of the Code of Criminal Procedure. The accused were tried before the learned Sessions Judge and a Jury on a charge of dacoity with murder under Section 396 oh the Indian Penal Code.
2. The Jury by a unanimous verdict found the accused Nos. 3 and 6 guilty of an offence under Section 396 of the Indian Penal Code, and the other four accused guilty of an offence under Section 395 of the Indian Penal Code.
3. The learned Sessions Judge agreed with the verdict as against the accused No. 1 Babar Ali, but failed to pass sentence on him, being of opinion that, as he disagreed with the verdict as regards the other accused, he was bound to refer the whole case to this Court. The learned Judge, however, was in error in the view that he took and it was clearly his duty to pass sentence on the accused No. 1 Babar Ali. As against the accused No. 1 Babar Ali the case must go back to the learned Judge for him to pass sentence on this accused. The charge against all the accused under Section 396 of the Indian Penal Code had reference to the dacoity perpetrated in the house of one Sona Bibi, a widow, when it is alleged that she was murdered. The skeleton that was subsequently found may not have been that of Sona Bibi. The evidence, however, leaves no doubt that a dacoity took place in the house of Sona Bibi, and her disappearance amply supports the charge of murder.
4. The view that seems to have commended itself to the learned Judge that, as a period of seven years had not elapsed since the disappearance of Sona Bibi, the Court could not presume her death, is fallacious.
5. There was in the present case evidence before the Court from which the Court could infer that Sona Bibi had been murdered on the night in question, and if is not necessary to rely on the presumption mentioned by the learned Judge. As I have already stated the learned Judge agrees with the verdict of the jury as against Babar Ali. He was a confessing prisoner, and the learned Judge believed the confession to be true. The accused No. 4 was also a confessing prisoner. But the learned Judge did not believe his confession to be 'quite voluntary,' and he further states in the letter of reference that the accused No. 4 retracted his confession at the first opportunity before the Committing Magistrate on the 15th of June. There is no reason to think the learned Judge is correct in his first assumption; his second, is incorrect, I see no reason to differentiate between the confessions made by Babar Ali and the accused No. 4, Pyar Molla, I think, therefore, that we ought to convict the accused No. 4, Pyar Molla, of an offence under Section 396 of the Indian Penal Code and sentence him to transportation for life. As against the remaining four accused, the confessions can be taken into consideration, but the Court requires corroboration before it will act upon the confessions of co-accused. The corroboration in the evidence in this case, although it raises a case of suspicion, falls far short of what is required to support a conviction. It consists principally of statements of witnesses as to seeing the accused or some of them together on the night of the occurrence, and as against one of the accused, as to the identification of certain ornaments found with one of the accused which had sometime or other been pledged with the deceased woman. Those Statements, though giving rise lo suspicion, are consistent with the innocence of these four accused.
6. I, therefore, think that we ought to accept the reference made by the learned Judge as regards the accused No. 2 Jamadar Mandal, the accused No. 3 Meser Sheikh, the accused No. 5 Panchu Shana, and the accused No. 6 Seyamuddi Shana, and that they ought to be acquitted.
7. I agree. Sub-section (2) of Section 807 of the Code of Criminal Procedure does not intend, as the learned. Judge seems to think, that when the Judge is not prepared to accept the verdict Of the Jury in its entirety the whole case is to be referred to this Court. It only contemplates a reference in the case of those persons in respect of whom the Judge declines to accept the verdict. When the Judge agrees with the Jury in respect of any particular accused, the Judge ought to convict and sentence, or acquit that accused as the case may be.