1. This is a reference tinder Section 307 of the Code of Criminal Procedure by the learned. Sessions Judge of Pabna in a trial held by him, with the aid of a Jury, of nine persons named Taribulla, Korban, Rahimuddi, Mahajan Mondal, Hajrat Ali Sheikh, Badu Mondal, Maju Sheikh, Amir Munshi, and Rajab Sheikh, charged with offenses punishable under Sections 147, 302 and 323, Indian Penal Cede and of one of the said persons named Maju Sheikh also charged with an offense punishable under Section 148 of the Indian Penal Code. The Jury were unanimously of opinion that three of the accused, namely, Taribulla, Mahajan Mondal and Badu Mondal were guilty under Sections 147 and 323, read with Section 149, Indian Penal Code, but that the other accused persons were not guilty of any offense. The learned Sessions Judge, for the reasons stated by him in his letter of reference, was unable to accept the verdict of the Jury and has submitted the case for the consideration of this Court. In his opinion, all the accused persons were guilty not only of an offense under Section 147, but also of the graver offence punishable under Section 302, Indian Penal Code.
2. The case for the prosecution, shortly stated, was as follows:---One Kumud Chandra Pathak, a Zemindar of village Saratia, within the jurisdiction of the Serajgunj Police Station, in the District of Pabna, was murdered on the 25th May 1920, while returning home in the afternoon from Serajgunj, where he had gone on business. The murder took place at a spot near the village Saratia. The deceased lived in Shibnathpur, a village about a mile off from Saratia. Between him and some of his tenants in Saratia, including the present accused, there had been, for some time past, a great deal of litigation, civil and criminal. The feeling between the parties was apparently so high that the deceased, whenever he had occasion to go to Serajgunj, the way to which lay via Saratia, tarried a gun with him. On the 25th May he want to Serajganj in connection with some cases of his then pending in the Courts there against some of his Saratia tenants. He went in a four wheeled Baggy and was accompanied by his cyce, Korban, and an officer of his named Krishna Sander Nandi. He did not, however, on this occasion tarry his gun with him. The deceased, after transacting his business, left Serajganj in the afternoon to return home. His officer, Krishna Sunder, had to be left behind, because the cases for the day in which he had to give evidence had not than been taken up. The distance between Sibnathpur and Serajganj is about six miles, About four miles from Serajgunj, on the road to Sibnathpur, is a plate tailed Sealkhole Hat. At this place, the deceased picked up one Meher, a tenant of his, to escort him safe beyond Saratia. He then proceeded on his journey and, it is alleged, as soon as he reached the accused, Taribulla's house, one Mohernddi, who was standing near the entrance with a dao in his hand, hastily draw up, seized the reins and stopped the Buggy. Others came up and Kumud Chandra was at first struck with a bamboo. Be got down from the Baggy and tried to ran away. Bat his assailants overtook him and literally hacked him to pieces and after putting his dead body in the Buggy started the horse off. The present accused are alleged to have been among the men who attached and murdered Kamud Chandra Pathak and they were sent up for trial under the sections referred to above.
3. The first information of the occurrence was lodged at about 6 30 p. m., on the 25th May by one Hemanta Kumar Chakravorty, a neighbour and tenant of the deceased, at the Serajganj Police Station. Hemanta had been informed of the occurrence by Meher and beyond the fact that it was stated in the first information that the man of Saratia had attacked Kamud Chandra and murdered him,, no details were given and no names were mentioned. The investigation commenced on the same evening and it appears that the Sub Inspector, Abdul Kader Khan, retched the place of occurrence at about 9.30 p.m. The latter arranged to send the dead body to Serajganj and sent for Kurban and Meher. He recorded their statements and thereafter deputed his constables to arrest the persons who had been named by Kurban and Meher. The persons, when arrested, denied having committed the crime and stated that they had been implicated out of enmity. Various searches, full details of whish are given in the deposition of the Sub-Inspector, were then carried out with the result stated above.
4. The case against the accused depended oh satisfactory proof of identification and to this end a large number of witnesses have been examined by the prosecution. Five of them, namely, Korban, syce, Gomer Bewa, Meher Sheikh, Ismail Sheikh and Sadulla Sheikh are described as eye-witnesses. The syce, Korban, describes how, when his master reached Taribulla's Bari, one Moheruddi Sheikh drew up and held the horse by the reins, how Rahim Bux and others, including seven of the accused persons, namely Taribullah, Mahajan, Hajrat Ali, Badu Mondal. Maju (Majher) Amir Munshi, and Rajib Sheikh, came up from the Bari of Taribulla with lathis in their hands, how Kumud Chandra was struck by Rahim with a lathi, how Moheruddi struck the deceased on the neck with a dao, how the deceased fell down and how he (Korban) and Meher thereafter ran to the west. In cross examination the witness states that he noticed from a distance of about 20 cubits that Moheruddi was standing in front of the Bari of Taribulla, and that he entertained no suspicious then. After the deceased had been struck by Moheruddi, he ran away and on looking back, after he had run about 3 pakhis, he saw that a number of persons had surrounded the deceased and that some of them were striking him with lathis and some with daos. He did not notice which of them were striking with lathis and which with daos. Later, he met the Choukidar Loharam and the constables who had been sent to the place of occurrance by the Sub-Inspector, bat he did not mention either to the Choukidar or to the constables the names of the deceased's assailants. His explanation is that neither the Choukidar nor the constables asked him anything on this point. He says, later, that the constables did ask him who had killed his matter, but he kept silent, the reason being that be thought he had better mention the names to the Sub-Inspector.
5. The witness Gomor Bewa identified the accused Korban (Kurman) as being one of the party of ten or twelve persons who were running away from the gari, when she arrived, Kumud had then been killed and his dead body had been placed on the gari. In cross-examination she slates that she came to know Herman's name by enquiry, She also states: 'I know the other people besides Korman, who ran away, from a long time.' She is apparently a very old woman and her eye-sight is defective.
6. The witness Meher Sheikh described how he was asked by the deceased to escort him safe beyond Saratia, and bow Moheruddi, who had been standing at the entrance to the Bari of Taribulla, came up and taught the reins of the horse. He and Korban (the syee) tried to snatch away the reins from Moheruddi but just then Mojher and Rahim Bux rushed up from the Bari of Taribulla. Rahim Bux struck the deceased with a lathi. A number of men thereafter surrounded the deceased, lie identified Taribulla, Hazrat Ali, Badu Mandal, Mojher, Amir Munshi and Rajah Sheikh as having been among the deceased's assailants. He ran as fast as he could towards the west, i.e., towards Sibnathpur, and informed the people of the village, including Hemanta about what had happened. In cross examination he stales that the constables asked him who had killed the deceased. He said that the Saratia people had killed him. The constables did not ask him about their names and he did net mention any names. It is also in evidence that, besides the constables, be met a number of people but he did not tell any one who had murdered Kumud Chandra.
7. The witness Ismail Sheikh states that he was passing by the road that runs by the south of Tariballa's Bari and that ha saw the deceased surrounded by 13 or 16 men, He recognised three of them only, namely, Moheruddi, Rahim Bux and Mayej.
8. The witness Sadulla states that when he was pre seeding to his khet be heard a shout from the witness Korban to the effect that his master was being killed. He looked about and saw four men raise the body of the deceased up on the gari and a number of men, about 15 or 16, run away towards the Bari of Taribulla. Three of the four men referred to above were Moheruddi, Rahim Bux and Mojher, In cross examination he states that be saw the dead body being raised from a distance of three or four pakhis and that he had at the time a basket of mangoes on his head.
9. Pausing here for a moment, it may be pointed out that, according to Hemanta, (P. W. No. 21) Meher did not tell him the names of the assailants when he informed him that the men of Saratia had killed the deceased. Krishna Sundar Nandi, (P. W. No. 20) met Meher on the morining: of the 16th May but the latter did not tell him which of the men of Saratia had killed the deceased or that be had seen the murder being committed. It appears from the evidence of Tarapada Das (P. W. No. 17) that no witnesses were examined en the night of the 25th May and, according to the witness Korbtin, the examination of witnesses by the Sob-Inspector began at dawn of the 26th May, and it was being continued when the Inspector (P. W. No. 34) arrived at about 9 30 a. m. There had undoubtedly been a great deal of litigation, as is apparent from the vast mass of documentary evidence which have been put in. We do not attach much importance to the compromise supposed to have been brought about by the witness Matiur Rahaman, Bat the considerations to which we have drawn attentior, tamely, the omission to mention names at the earliest moment are important when one has to weigh the evidence of identification in circumstances disclosed in the evidence of the witnesses mentioned above. In our opinion the conclusion may not unfairly he drawn that the evidence thus far reviwed is not sufficient to in use us to hold that the case against the accused has been clearly proved. Ist us now see if the remaining evidence on record can be relied upon. The witness Umaruddi (P. W. No. 9) is admittedly on terms of comity with come of the accused persons. Besides having regard to the evidence about the time of the occurrence, the evidence of recognition furnished by this witness does not commend itself to us. The witness Elahi Bux states that he did not recognize those who ran across the jute khet but recognised those who ran over the bota. In cross-examination he states that Hemanta Chakraverty enquired of him, among others, who had killed the deceased and that he did not tell him anything. It is also in evidence that he did not tell the Choukidar Loharam what he had seen.
10. The witness Jonah Ali identifies Rahimuddi and Mahajan Mondal as being among the men who were running away. Ha admits, however, in cross-examination that although immediately after the murder, men same in from all sides and assembled round the dead body and enquiries were being made as to who had killed the deceased, he did not name any body. The witness Khedu identifies Rahimuddi as being among the men who ware running away; but he did not identify Rahimuddi in the Court of the Committing Magistrate aid no satisfactory explanation is for the coming as to why he did not.
11. It is unnecessary to refer in detail to the evidence of the other witnesses, but it may be observed here that the medical evidence is not consistent with the theory that there were lathi blows on the deceased. That the deceased was most cruelly and brutally done to death, there cannot be the slightest doubt, but the evidence on record as against the accused, taken as a whole, leaves room for doubt as to weather their complicity in the crime has been proved. In these circumstances, we mast accept the opinion of the Jury as regards the six accused whom they found not guilty. We accordingly direct that their bail bonds be cancelled and they be discharged.
12. As regards the accused who were found guilty by the Jury under Sections 147 and 326, read with Section 149, Indian Penal Code, it has been contended on their behalf that the learned Sessions Judge's charge to the Jury is vitiated by many and serious misdirections therein. Our attention has been drawn to a number of points and we will proceed to examine a few of then bearing on the question of misdirection. The accused Bedu Mandal and Rejab Ali pleaded alibi. The learned Sessions Judge correctly told the Jury that the onus was upon the two accused to prove this plea and that it was for the Jury to say whether they had succeeded in establishing this plea. But the learned Sessions Judge went on to add that if the Jury ware of opinion that the two accused had filled to establish this plea, then there would arise a presumption against them as to their complicity in the trims. We think in laying down this, the learned Sessions Judge was clearly wrong and that there is no authority for the statement that Sash a presumption would arise in the event mentioned above. Then, again, the learned Sessions Judge speaks of the witness Gomer Bewa being under some obligation to the accused Taribulla. We have examined the evidence of Gomer Bewa for ourselves and we are satisfied that there is no evidence on record in support of the statement that Gomer Bewa was under any obligation to the accused, Taribulla. Further the learned Sessions Judge should not, in our opinion, have expressed himself to the effect that had the case against the accused been a got up one, the evidence would have been of a different character and free from the defects to which he had drawn the attention of the Jury, nor was he entitled to say in a general manner of the contentions on behalf of the defense that there was nothing in the evidence to support or even to lend a semblance of support to them. The summing up might, with advantage, have been more dispassionate and the evidence against the individual assumed might have been put in a less dogmatical manner. For instance, the learned Sessions Judge has 'no doubt about the complicity of Taribulla in the matter'; as to Taribulla's presence at the occurrence there cannot possibly be any doubt'; 'his refusal to disclose the names of the offenders shows that ho was not an honest or disinterested parson wholly unconnected with the affair'; 'the fact that Amir Munshi was seen returning from the Hat at dusk would not in the least detract from the truth of the prosecution story as to his participation in the crime.' etc., etc. The learned Sessions Judge was no doubt entitled to express his own opinion on the evidence adduced before him, but the opinions to which we have sailed attention were ex-pressed in such a manner tint it is impossible to say that grounds for legitimate complaint do cot exist. The Judge presiding at a trial by Jury mast always be careful that he does not usurp the functions of the Advocate and that the evidence in the case is presented to the Jury in as dispassionate and impartial a manner as is expected of the presiding officer, We are constrained to observe that the charge in the present case falls short of this standard.
13. With regard to the three accused whom the Jury proposed to convict under Section 147 and Section 326 read Section 149 it might have been necessary to direst a re-trial; but, having carefully considered the entire evidence, we think that to direst a re-trial would serve no useful purpose, and we, therefore, acquit those three also and direst that they be now set at liberty and that their bail-bonds be discharged.
14. I agree.