1. The two appellants were charged with offences under Sections 295, 297 and 436, I.P.C. They were found guilty by a majority of 3:2 of the jury of offences under the first two sections. They have been found not guilty by the unanimous verdict of the jury of the offence under Section 436. The objections taken in regard to the trial are : firstly, that the procedure in empannelling the jury was illegal ; secondly, that the learned Judge did not point out to the jury that in regard to circumstantial evidence, it is necessary that the jury should find that the circumstances placed before them are not consistent with the innocence of the accused; thirdly, it has been pointed out that the learned Judge has misdirected the jury with regard to the statement of one of the witnesses to the effect that the culprits had not been recognized at the time of the occurrence; and lastly, it has been pointed out that the learned Judge is wrong in stating to the jury that there is a presumption of law that the witness who has spoken untruth must be believed in so far as they depose to facts spoken to by other witnesses.
2. In regard to the first matter what happened is this : Out of 12 jurors summoned only two were in attendance. The learned Judge sent for three of the professors from the local college, and when objection was taken to the sitting of one of them as a juror, he sent for another professor of the same college to fill up the vacancy in the jury. This procedure is not justified by the provisions of Section 276, Criminal P.C. Proviso 2 to that section provides that in case of a deficiency in the required number of jurors, the Court may empannel other persons present in Court to fill up the vacancy in the jury. There has been illegality in regard to the empannelling of the jury and this] illegality has vitiated the trial.
3. The second objection is also good. The learned Judge has not put it to the jury that when a case is based on circumstantial evidence, the circumstances should be such that there can be no reasonable possibility of the innocence of the accused.
4. The third matter has come up in the following circumstances : One of the witnesses in answer to a question put in cross-examination said that the reason-why information was not given to the police immediately after the occurrence although the police station was only a short distance away from the scene of occurrence was that the persons who has committed the offence were then unknown. The Judge then told the foreman of the jury to put the question in another form to the witness and the witness said that he and others had recognized the appellants at the place of occurrence and seen them running away. The learned Judge has said to the jury in his charge:
As to Hridoy, he has no doubt said in answer to an invalid question from Khan Bahadur, the learned pleader for the defence which was repeated by me, that the culprits could not be ascertained that night. If you think that he gave the answer after understanding the question there is an end of the case for prosecution and the accused should be forthwith acquitted. If on the other hand you think that he did not understand the question you are to consider what he had stated before and what he said later on in answer to foreman's question.
5. This is a very improper way of dealing with an answer in favour of the defence. The learned Judge has not recorded anything from which it cm be inferred that the witness did not understand the question put to him. The question itself is a simple question and we do not see how the witness could have had any difficulty in understanding it. If it was possible, that the witness could have misunderstood the question put to him it was necessary that the facts which led to the inference that the witness had misunderstood it should have been placed on the record and should have been placed before the jury for their consideration. Nothing of this sort was done and the procedure followed by the learned Judge1 was wrong.
6. Lastly the presumption laid down by the Judge in regard to the testimony of witnesses is entirely without authority. If a witness says something which appears to be untrue, it is still open to the jury to believe any other statement made by that witness. But that is a matter entirely within their own discretion and there is no hard-and-fast rule making other statements which are not proved to be false binding on the jury, as the learned Judge has put it to them. The case relates to the setting fire to a thatched hut used as a temple to the goddess Sitala and to the desecration of certain earthenware images in another hut standing near it. It is stated that the accused Sagiruddin was seen standing close to these huts when the fire started and that the accused Jahiruddin was seen coming out of the Kali temple and joining Sagiruddin and running away with him. The jury have unanimously found the accused Jahiruddin not guilty of the charge of arson. There was no reason why they should find Sagiruddin guilty and Jahiruddin not guilty. Both men are said to have been seen at the spot. Neither of them is said to have been seen setting fire to the huts and it is therefore impossible to understand how one of them could be found guilty and the other not. As regards the charge of desecration : the circumstances of the case clearly indicate that that charge is without foundation. The earthen images which were in the hut known as Kali Ghar were not destroyed; only the heads of those earthen images were found lying on the ground.
7. If these images had been broken by a person who intended to desecrate the temple, it is extremely improbable, in fact utterly improbable, that the person who desecrated the temple would have contented himself with merely removing the heads of the images and placing them on the ground. We have it in evidence that these earthen images are made on the occasion of a certain puja and that they are kept for the whole year and destroyed when new images are put up when the puja comes round again. As these images are made of cheap earthenware, it is quite likely that the heads and other parts which are stuck on should fall off. In such circumstances the charge does not seem to be justifiable. Further, as already stated, the police station is very near to the temples, and although the occurrence is said to have taken place at midnight information was not given at the police station till the following evening. If the ease had been a true one and any person had been recognized, there is no reason why information should not have been given at once or at least in the morning. The fact of the delay in lodging the first information is in itself strongly suggestive of fabrication. The explanation that has been offered is that the Muchies who were owners of the temples, were afraid of going to the police station at night and that in the morning, instead of going to the police station, they went to the Panchayet and as the Panchayet was absent from home they went to him again in the evening and after consulting him they gave information at the police station. Considering how suspicious the other circumstances of the case are this additional circumstance of the delay in giving the information makes the case unworthy of credit. We find that the juror's verdict cannot be maintained because the Court was wrongly constituted and the only question left to decide is whether or not there should be a retrial. In the circumstances stated above we do not think that we should be justified in ordering a fresh trial. The appellants are therefore acquitted. They will be discharged from their bail bond.
8. I agree.