1. In this case when the trial had proceeded to the end of the learned Judge's charge to the jury, the jury considered their verdict. There were eleven accused and the foreman read out the names of those eleven people and said that the jury found them all guilty under Section 147, I.P.C. So far as the learned Judge is concerned, the foreman was then heard to read out the names of five of those accused and to say that the jury found them guilty under Section 364 and to go on to say that the others were not guilty under that section. Thereupon, the learned Judge recorded that as their verdict. He typed out a little judgment and sentence on that basis and he read it out in Court, when, to his astonishment, the foreman said:
No that is not what we said. What we said was that these five people were guilty under Section 364, but we gave them the benefit of the doubt.
2. Thereupon, the learned Judge has, 1 think, exercised a most admirable discretion. He recharged the jury, telling them particularly about the benefit of the doubt and what Section 364 meant and sent them back to consider and find out what their verdict really was. They came back. They delivered their verdict perfectly properly, finding the eleven accused guilty under Section 147 and finding certain accused guilty under Section 365. It is not said that there is anything wrong with the charge, and the verdict cannot be attacked upon that ground. It is said, first, that in this course there is something contrary to the Code and that the learned Judge had no light to recharge the jury at all; secondly, that he should have taken this absured verdict as a verdict of not guilty; and, thirdly, that at all events he was confined to asking certain questions of the jury.
3. I desire to say that I protest against all three of these suggestions. The learned Judge was not obliged to accept an absurqd verdict, either as a verdict of guilty or as a verdict of not guilty. He was quite entitled to tell the jury; to consider that matter over again. In the case in which the jury have not considered the matter over again, a verdict of that character would doubtless be construed afterwards as a verdict of not guilty; but that there is any duty upon the Judge to accept and interpret for himself a verdict of that character, when the jury are there and can give a proper verdict, is to my mind a proposition which hag no foundation. Again, the learned Judge could, if he liked, have asked questions of the jury. He was not obliged to do so. If he thought it fairer and clearer and simpler to recharge 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 be cross-examine the jury, which, as a matter of fact, means cross-examination of the foreman. That is generally a most unsatisfactory procedure.
4. Then it is said that, because the learned Judge has not treated as part of the record the piece of paper on which he typed out the foreman's verdict of guilty as the Judge understood him, which the foreman afterwards disclaimed as not being the verdict at all, that is contrary to the Code and ought to vitiate this trial. In my judgment, the intention of the Code has in this case been most sarupulously fulfilled. You cannot put down in black and white a misunderstanding, and if the learned Judge had allowed that record to remain, it would have been obviously wrong unless he coupled it with something to say that there was a discrepancy between what he took the verdict to be and what the foreman afterwards said it was. The learned Judge, accordingly, recorded in the greatest detail everything connected with this incident; and, in my judgment, there is no ground whatsoever for interference with the result of this trial.
5. The appeal must be dismissed. The applicants must now surrender to their bail and serve out the remaining periods of the sentences imposed on them.
C.C. Ghose, J.
6. I agree.