1. By the terms of the reference before us now, Mr. S.C. Chakravarty the Assistant Sessions Judge at Alipore, indicates that he is by no means in agreement with the decision of the Jury sitting with him, who acquitted three persons; Gosto Sardar, Ishan Sardar and Haran Sardar of the crime of dacoity. We are getting a good many of these references now, and I may say, at once, that if the phrase may be used with propriety where acquittals are concerned there is a much greater onus upon the learned Judge to convince an appellate Court with extreme particularity than there is when he makes a reference with regard to a conviction. Now, here it seems to me that the learned Judge has absolutely no right to put up to this Court a report which is intended to substitute his judgment on a pure question of fact, rather than the judgment and opinion of the jury, who was sitting with him.
2. This dacoity case depended almost entirely upon tainted evidence. There was an approver, and two confessions were made, both of which were retracted, and the only view that the learned Judge seems to have taken with regard to bringing home the question of guilt to the accused was that he thought that the circumstantial evidence, such as it was, ought to have been accepted by the jury as confirming the facts contained in the retracted confessions and in the approver's testimony in the case. One cannot read these confessions without seeing that they are of a kind very familiar to the Judges of this Court, the sort of confession which seeks to implicate a number of other people whilst carefully safeguarding the conduct of the person confessing it. This type of confessor never really does anything at all, but is always on the spot through compulsion, and all that it is useful for is to testify to various happenings which involve other people. There was certain evidence with regard to the pawning of the articles, said to constitute the loot of the dacoity, but the answer to that contention on the part of the prosecution seems to have been that the articles in question were common objects, claimed equally by the persons who pawned them as being their property as well as by the persons who were the victims of the dacoity. The jury were perfectly entitled on this plain issue of fact to accept the evidence of ownership on the innocent side, if they wished to. In the circumstances of this case, we must reject this reference, and express the hope that references of this type consisting of very exiguous materials will be less frequent than they have been lately on our board. The accused must, be acquitted and released forthwith.
3. I agree. The evidence by which the prosecution sought to establish their case consisted in the testimony of an approver, the recovery of certain articles which were said to be part of the loot, and in the case of the accused Gosto's and Haran's confessions. This should be enough to show that the case is one which is eminently suitable for trial by a jury, but it will be almost impossible to say that the verdict, whatever it might be, was unreasonable or perverse. With great respect to the learned Judge, so far as the accused Ishan is concerned, the view of the jury was eminently sound, because on going into the case we find that there is really nothing against him, except the uncorroborated testimony of the approver. We are certainly not prepared to say that a jury refusing to convict on such testimony is acting perversely. In addition to that deposition the prosecution produced Exs. 6, 7 and 8 said to be part of the loot which were recovered from prosecution witness No. 15 Paresh. Now, the approver said that this accused Ishan admitted to him that he sold some of the loot to Paresh. Suppsoing Paresh had come forward and supported that story, the prosecution might urge that there was some corroboration of the approver's evidence. But even then the jury might refuse to accept, as satisfactory corroboration, an exculpatory statement made by the person in whose possession the stolen property was actually found and in doing so would clearly be taking a thoroughly reasonable view of the matter. The present case is even weaker than that; when put into the witness box, Paresh absolutely denied that these articles had been sold to him by Ishan, and claimed them as his own.
4. The identification of the property alleged to have been stolen is common to the cases of all the three accused persons. It is also common to all the three cases that the persons, from whose possession these very ordinary articles were recovered claimed them as their own. Where in a case of counter-claims of this sort the jury are not satisfied that the property in question is proved to have been stolen in the course of dacoity, it cannot be said that their view is unreasonable.
5. The only other evidence consisted of two confessions made by the accused persons Gosto and Haran. As my learned brother has pointed out, those confessions are of a character which suggests that they are not made from any desire to tell the truth, but for some other purpose. We are not at all surprised that the jury refused to accept those confessions. Neither of them is a full or frank statement. Both the accused persons, alleged that they were compelled to join in the dacoity against their will. That is always a suspicious circumstance because there is no advantage to the rest of the gang in taking reluctant persons to participate in the crime. Then again, neither of them did anything when he got there. As I have already said, we are not at all surprised that the jury refused to convict on these statements.