1. This is a reference under Section 307 of the Criminal Procedure Code in respect of six accused persons; they were tried jointly with four others who have been acquitted by the Court below.
2. The circumstances antecedent to the prosecution may be briefly stated. There was a long-standing dispute with regard to the possession of a tract of land whereof the Chowdhuris were the zemindars. The case for the prosecution is that on the 9th August, 1922, the party of the accused made an attempt to take forcible possession of the land with the result that violence was used on both sides. Two persons named Sariat and Sarafat were shot. Sariat died in hospital on the 11th August, 1922. Sarafat survived and has given evidence at the trial in support of the prosecution. The case for the defence is that the land was in the possession of the party of the accused and that the complainants were the aggressors. It is further asserted that the complainants in their desire to obtain forcible possession requisitioned the services of Sariat and Sarafat.
3. There was thus a clear cut divergence between the two sides upon a pure question of fact and evidence was adduced in great details upon the subject of possession. That evidence was fully summarised by the Sessions Judge in his charge to the jury and has also been placed before us on behalf of the Crown. The Sessions Judge in the course of his summing up clearly analysed the points which required decision and he correctly stated that the fundamental question was, which side was in possession of the disputed property. The jury evidently accepted the view that the complainants were the aggressors, and that they endeavoured to obtain forcible possession of the property which was in the occupation of the accused party. The result was that they brought in a unanimous verdict of not guilty upon all the charges against all the accused persons.
4. The Sessions Judge accepted the verdict of the jury with regard to four of these persons namely Abdul Mollah, Monirnddi Mollah, Moniruddi Jemadar and Mantoo alias Amrita Lal Roy. The Sessions Judge, however, expressed the opinion that he could not on the evidence accept the verdict of the jury in respect of the other six accused persons and has made this reference for the ends of justice.
5. It is obvious that in a case of this description where the Sessions Judge has accepted the verdict of the jury with regard to some of the accused persons and declined to accept the verdict with regard to others, this Court as a Court of reference under Section 307, Criminal Procedure Code, is placed in a situation of some difficulty. The evidence which has been placed before us leaves no room for doubt that the witnesses who have spoken to the participation of the four acquitted persons in the occurrence are the very witnesses who have spoken as to the complicity of the six persons whose cases are now under consideration. We have not been able to appreciate the ground why these witnesses should be believed as to four of the accused and disbelieved as regards the other six persons. Mr. Mookerji has pointed out that in respect of some at least of the persons who have been acquitted the statements of these witnesses are as clear and as emphatic as those made in respect of the six persons whose cases have been referred.
6. We need not set out in detail the evidence of possession, but we may state our conclusion that it is of such a character that the jury would be amply justified in the view that the case for the prosecution was untrue and the case set up for the defence was true; in other words, that the defence party was in occupation and that the party of the complainants constituted the aggressors. This inevitably leads to the position that the common object assigned in the charge as framed to support a case under Section 147, Indian Penal Code, has not been sustained, and we cannot at this stage invent another common object in order to support the conviction. This view has boon taken in a series of decisions of this Court such as Fateh Singh v. Emperor  41 Cal. 43 Puresh Nath Sircar v. Emperor  33 Cal. 295 and Pachkauri v. Queen Empress  24 Cal. 686. The charge under Section 147 and consequently the charges under Sections 304 and 326 read with Section 149 must therefore fall through.
7. Then remains the question whether the specific charge against the principal accused Akbar Molla can be sustained. It may be assumed for the purpose of the present reference that it was his shot which ultimately led to the death of Sariat. The question arises whether he acted in exercise of the right of private defence and, if be whether he exceeded his right. In respect of this question, there is a conflict of testimony as to what happened. The case or the prosecution is that Akbar Mollah came prepared for a fight with a gun in hand. This is consistent with the theory that the party of the accused constituted the aggressors, and not with the case that the party of the complainants were the aggressors. The case for the defence, on the other hand, is that Sariat and Sarafat who had been requisitioned for the express purpose of taking forcible possession of the disputed land, came armed with lathies determined to use violence for the attainment of the object in view. The defence witnesses further assert that it was only after one of the accused persons, namely, Abdul, who has been acquitted by the Sessions Judge, had been struck on the head that Akbar used his gun. There is, as we have stated, a conflict of testimony on this point. The jury in our opinion were fully justified if they believed as they appear to have done, that what happened was correctly stated by the defence. If that story is believed, there is no question that Akbar acted in exercise of his right of private defence and did not exceed that right.
8. There has been some discussion at the bar as to the function of this Court under Section 307, Criminal Procedure Code, and our attention has been invited to the case of Emperor v. Nritya Gopal Roy  38 C.L.J. 1, and Emperor v. Swarnomoyee Biswas (1913) 41 Cal. 621, which emphasises the well known pronouncement by Mr. Justice Macpherson in the case of Queen v. Sham Bagdee  20 W.R. Cr. 73. In the case last mentioned the following observation was made : 'If we are to interfere in every case of doubt-in every case in which it may with propriety be said that the evidence would have warranted a different verdict - then we must hold that real trial by jury is absolutely at an end, and that the verdict of a jury is of no more weight than the opinion of assessors.' We see no reason to doubt the soundness of this principle. We need not, however, in the present case, fairly simple on its own facts, embark upon discussion of the scope of Section 307, Criminal Procedure Code, with reference to all the judicial decisions which may be difficult to reconcile; But this much is clear that in a case under Section 307, Criminal Procedure Code, this Court which has not the opportunity to see the witnesses must act with great caution. The Judge in the Court below saw the witnesses and watched their demeanour. So also did the five jurors. The jurors unanimously held that the case for the prosecution should not be believed as regards all the accused persons. The Sessions Judge has accepted that opinion of the jurors in respect of four of the accused. He his, however, declined to accept the verdict with regard to the other six persons. The position consequently is that we have the unanimous opinion of five jurors as to the value of the testimony of the witnesses whom they had the opportunity to see. We have the fact that that opinion is shared by the Judge himself in respect of four of the accused persons. We have the final fact that the Judge has taken a different view of the reliability of the witnesses in respect of six of the accused.
9. This is precisely a case where we may usefully recall the observations of Sir John Coleridge in Reg. v. Bertrand (1867) 1 P.C. 520. 'The most careful note must often fail to convey the evidence fully in some of its most important elements, those for which the open oral examination of the witness in presence of prisoner, Judge and Jury is so justly prized. It cannot give the look or manner of the witness his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration it cannot give the manner of the prisoner when that has been important, upon the statement of anything of particular moment; it is in short or it may be, the dead body of the evidence, without its spirit which is supplied when given openly and orally by the ear and eye of those who receive it.'
10. In the case before us, we are not able to accept the recommendation of the Sessions Judge that the verdict of the jury in respect of the six persons whose case has been referred, should be set aside.
11. We direct accordingly that the reference be discharged and the accused be released from custody.