1. In this case the accused were tried under Section 328, and 301, I.P.C., before the learned Sessions Judge of Bakarganj and a jury. After the learned Judge had charged the jury it appears that the jury retired at 4-10 p.m. and returned at 4-25. When they returned, the verdict of the jury was given as follows:
Q. Are you unanimous? A. Yes.
Q. What is your verdict? A. We agree? with whatever opinion you may form (hujurer je rai amader).
2. The jury were accordingly directed at 4-26p.m. to go back and bring in a proper verdict after consideration of the evidence. They came back at 4-35p.m. and on being questioned they said that they found all the three accused not guilty under Section 301 and by a majority of 4 to 1 found all the three accused. Montajuddi, Abdul Barik and Akram Ali, guilty under Section 328, I.P.C. In this state of the record it is impossible not to feel that the jury did not properly consider the case at all. The jury, as has been pointed out in several cases, are the only persons who can pronounce a definite opinion on the guilt or otherwise of the accused who are tried before them. In this case they apparently abdicated their functions in favour of the Judge. No doubt, the Judge very properly sent them back, but it does not appear from the time occupied by the jury in their second deliberation that they properly considered the case and brought in a genuine verdict. We are confirmed in this because of what the learned Judge has said himself in his finding and sentence, namely; 'I accept this verdict although I do not agree with it.' There is, therefore, all the more reason why this matter should be further considered by the learned Sessions Judge and a fresh jury.
3. The result is that the verdict of the jury is set aside and with it the conviction and the sentence, and the matter must go back to the learned Sessions Judge for retrial before him and a fresh jury.