1. The case in which this reference has been made arose in this way: It appears that on the evening of the 6th of April, the three complainants went into a house in Rangoon occupied by certain actresses; that the persons said to be the seven accused came in afterwards; that a quarrel arose in which injuries were inflicted (it is alleged by the seven accused persons or some of them) upon the complainants; that on the evening of the occurrence, or immediately after it, the complainants, who had gone to the thannah, pointed out two of the accused persons, who had also gone there, as amongst the persons who had assaulted them, and on the same evening they mentioned the name of the third, but at that time they said nothing about the appellants whose case is now before us--the accused persons 4, 5, 6 and 7. The complainants were the same evening taken to the hospital, where the police officials followed them, and made endeavours to obtain from them the names or identification of any other persons amongst their assailants, in addition to the two who had been identified, and the one who had been named; but the police officials failed to obtain any further information then. Eighteen days after the occurrence, and about four days after some of the complainants had come from the hospital, a petition was presented, not through the police, but to the Magistrate who was then investigating the case in which the four appellants, accused Nos. i, 5, 6 and 7, were said to have been amongst the assailants. All the seven persons were accordingly committed for trial. The case came on for trial before the Additional Recorder of Rangoon and all the seven accused were convicted. On appeal to the special Court, objections were taken to the summing up of the Additional Recorder to the jury, and the two members of the special Court, viz.,'the Judicial Commissioner and the Additional Recorder, having differed in opinion, this reference has been made. The point referred is this: Whether or not in this special case the learned Additional Recorder misdirected the jury in so far as the appellants Nos. 4 to 7 inclusive are concerned.
2. Now, in explaining his summing up and its bearing upon the case, the learned Additional Recorder says this: ' The seven accused were identified by the various witnesses as well as by the complainants, and the share taken by each man was spoken to. So complete was the evidence of this identification, that the appellants' advocate made a strong point of it in their favour and pointed out to the jury that the witnesses should not be believed because of the very completeness of their evidence.' It is thus clear that in the view of the learned Additional Recorder, the evidence of identification against the whole seven accused persons, including the appellants, was of an exceptionally clear, specific and strong kind. If that was so, it appears to us that it was of the very first importance to point out to the jury, that as to four of these people, the story originally told to the police did not touch them at all, but that all this exceptionally clear story was heard of, for the first time, eighteen days after the occurrence. That seems to us to be not a small circumstance which the Judge might fairly pass by, or assume that the jury would give full weight to. It was a matter of so much moment that in an ordinary appeal from a conviction by a Judge with assessors, it would probably be sufficient to upset the conviction. Then there is another aspect of the case, viz., that the attention of the jury was not drawn to the material difference that existed in the evidence as against the two sets of accused persons. So far as we can see from the statement of the Additional Recorder, he left to the jury the case against all the seven accused men as if there was substantially the same case against them all. We think that there was a very great difference between the two cases. The charge against the first three accused persons was made immediately after the occurrence. The charge against the other four was made for the first time eighteen days afterwards. We think that the omission to call the attention of the jury to this vital matter was a defect so serious as to amount to misdirection within the meaning of that word as construed in the cases cited by the Judicial Commissioner and the Additional Recorder. We further think that, under the circumstances of the case, these four persons were prejudiced by the mode in which the matter was left to the jury. Indeed, it could not be otherwise. We are of opinion, therefore, that the point referred to this Court must be answered in this way: that the learned Additional Recorder did misdirect the jury in the manner indicated in the reference, and that this misdirection did so prejudice the appellants 4, 5, 6, and 7 as to justify the special Court in setting aside the verdict of the jury so far as regards these four prisoners.