1. This is a Reference by the learned Sessions Judge of Birbhum in a case in which the accused Sristidhar Mazumdar was charged with murder and with a minor offence. The accused is a youth, whose age is said to be somewhere between 15 and 17 years.
2. The main allegations on behalf of the prosecution were that the accused and the deceased Umapada were attending a school at Bolpur, that they both lived in the house of a Pleader at Bolpur , that they occupied the same room, that on the morning of the occurrence between 10 and 11 o'clock they were seen preparing themselves for bathing and that later in the day the deceased boy was found by a woman sometime about 2 o'clock lying in an irrigation pit near a tank which was about half a mile away from the place where the boys were lodging--half of his body was covered in the mud--he was wounded and he had apparently lost a considerable amount of blood. It was alleged that he stated that the accused was the person who had inflicted the wounds upon him and that he made that statement in the first instance to the woman, who found him, and then to four men, who were brought by the same woman to the place where the deceased was lying, and to several responsible and reliable persons who were broxight to the place afterwards upon an alarm being raised in Bolpur--one of whom was the President of the Union Board, another was the Secretary and two others were Pleaders. In addition to this, his deposition was taken by an Honorary Magistrate in the afternoon of the same day after he was taken to the Hospital. The evidence is that he was conscious at the time although he could speak only faintly. To all those persons he made the same statement, viz., that, the accused was the person who had committed the assault upon him.
3. The other part of the case was that the accused had made a certain statement and the result was that the Sub-Inspector of Police and other persons, after searching the room of the accused, went to the tank and then the accused threw a clod of earth into the tank for the purpose of indicating the place where he had thrown something, that a search was made and a knife of a peculiar shape was found in the tank. Two witnesses were called to prove that this knife belonged to the accused person. The Jury by a majority of four to one were in favour of an acquittal on both the charges. The learned Judge did not accept their verdict and referred the case to the High Court under Section 307 of the Code of Criminal Procedure.
4. The question is what course are we to adopt upon this Reference. Under Section 307, Sub-section (3), of the Code of Criminal Procedure, we have all the powers which this Court may exercise on an appeal, and subject thereto, this Court shall, after considering the entire evidence and after giving due weight to the opinions of the- Sessions Judge and the Jury, acquit or convict the accused of any offence of which the Jury could have convicted him upon the charge framed and placed before it.
5. As regards the first part of the case, namely, the statements, which the deceased is alleged to have made to the various witnesses, and in his deposition, in my judgment, it may be said that there is a grave case against the accused. I find it exceedingly difficult to believe that the deceased would have made those statements against the accused unless they were true; that the statements were made by the deceased is proved beyond all doubt, by some of the witnesses whose testimony cannot be impeached. This Court, however, is placed in a difficult position by reason of the other part of the case, and the evidence which relates to the finding of the knife and the ownership of it. As regards the finding of the knife, the learned Judge in his long and careful direction to the Jury, amongst other things, said this; 'If it Avas found, the fact that the accused indicated the point where it was found is suspicious.' From this I gather that the learned Judge meant that as the accused had all along been protesting his innocence it was a curious thing that the accused should have taken the Sub-Inspector and other persons to the tank and pointed Out the place where he had concealed the knife in the tank. Again the learned Judge said: 'On the other hand, you may 'believe the knife was not found. There are contradictions in the evidence as to the extent of the water, as to the place where the knife was found. Contradictions as to the size of the Avater to my mind suggest, not only that the knife was not found, but that the witnesses had never seen that tank at all; unless you believe them to be due to ignorance or incorrect estimation.'
6. That is a strong direction to give to the Jury; and I agreed with the learned Counsel for the Crown when he said that it was not surprising after such a direction, that four of the Jurors should have come to the conclusion that they could not convict the accused of the offences with which he had been charged. If we had before us no more than what appears in the learned Judge's summing up to the Jury, I should have been inclined: to think that the learned Judge was of opinion that that part of the prosecution case was not to be relied .upon. But the learned Judge in his Letter of Eeference distinctly says that he considered it to be proved beyond all reasonable doubt that the accused was known to possess a knife of peculiar shape and that he gave information .which led to the actual discovery, a few hours after the crime, of such a knife concealed on the scene of the crime. That opinion seems to me to be, with great respect to the learned Judge, inconsistent with the opinion, which he had expressed to the Jury in his summing up and to which I have referred. But the matter does not rest there. On the question as to whether this knife belonged to the accused person, the learned Judge in his summing up was perhaps more severe in his strictness upon the prosecution evidence. On this part of the case the learned Judge dealt with the evidence [of two witnesses,--one was a betelnut-seller whose name is Khanda Bairagi, and the other a cultivator whose name is Tarak Nath Das. As regards the evidence of the betel-nut seller, the learned. Judge said, The betel-seller's evidence is very unsatisfactory as you must realise.' The learned Judge then proceeded to give his reasons why he thought the betel-seller's evidence was unsatisfactory. As regards the evidence of Tarak, the learned Judge, after dealing with the evidence of the betel-seller, remarked as follows:
7. 'However, it is entirely for you to decide whether you believe the evidence of this witness or not. Further, if you disbelieve it, you are to decide whether you believe the evidence of Tarak about the knife which does not contain quite such outrageous contradictions'--implying thereby that Tarak's evidence did contain contradictions but that they were not quite so outrageous as those contained in the evidence of the betel-seller.
8. In view of these criticisms and the direction to the Jury upon this part of the case, it seems to me that the Jury may well have come to the conclusion that, as regards the ownership of the knife and as regards the alleged finding of the knife in the tank, they could not rely upon the evidence for the prosecution. If the Jury were of that opinion, I cannot say that it was an unreasonable view to take. It must be further noted that the learned Judge, in his Letter of Reference to this Court, said: 'I do believe that witnesses have to some extent been tutored to make a consistent story; but I am convinced to my own satisfaction that the original story they had to tell was true, and that the embellishments which led to minor contradictions do not vitiate it.'
9. The learned Judge may be right. But the Jury were the judges of the facts, and having regard to the direction of the learned Judge as regards the ownership of the knife and the finding of it, in my judgment, it is impossible for this Court to hold that the Jury were not entitled to take the view that it would not be safe to convict the accused, and to overrule the verdict of the majority of the Jury.
10. For these reasons, in my judgment, this Reference should not be accepted.
11. We, thefore, direct that the accused be discharged from custody.
12. Chotzner, J.--I agree.