1. This case comes before us on a Reference made by the learned Sessions Judge of Rajshahi under the provisions of Section 307 of the Criminal Procedure Code. Five persons were placed on trial before him on charges of rioting and of culpable homicide during the course of the riot. The jury were unanimous in finding all the accused not guilty. The learned Sessions Judge felt unable to accept that verdict and he has accordingly made this Reference to us.
2. The occurrence is said to have taken place on Christmas day last year. There was what is called a baitch held in a large heel and the story is that the unfortunate man Bako ran his donga into some nets belonging to two of the accused, Faratulla and Asmatulla. This excited their rage and they and their friends chased Bako, caught him when he landed and inflicted numerous blows upon him from one of which be died as it fractured his skull. That is the story.
3. The evidence adduced before the Judge consisted entirely of oral evidence, and, as I read the learned Judge's charge the general tone of it was to east doubt on the sufficiency of the evidence. However, on receiving the verdict of not guilty, the learned Judge has thought fit to make this Reference.
4. The first thing that deserves attention in the prosecution case is the first information. That was given by the witness Lady Pramanik on the following morning and he said there that the offenders were two or three men-names unknown-Hedati fishermen of Moshidpore. No more detailed first information was recorded and it is not known at what point of time the names of those accused persons were first committed to writing.
5. Then, the next thing is that at one stage the witnesses tried to make out that Bako before his death told his friends who had inflicted the blows upon him. That attempt has been given up and the witnesses show some anxiety to disavow their previous statements. But I have no doubt that an attempt was made to prove the dying declaration. About that, the medical evidence is that it is extremely improbable that Bako could have mentioned the names of his assailants after receiving the serious injuries that he did receive.
6. Those are the two grave defects in the case. The learned Judge noticed them and I have no doubt that they weighed with the jury when the result was under their consideration.
7. What is left, then, is the oral evidence of numerous witnesses. To judge by their number, it is abundant. But, there is nothing on which we can lay our hands and say that this witness or that witness must be speaking the truth. The jurors had the advantage of seeing the witnesses and hearing them, and, in a case of this kind, that advantage is a very great one.
8. It is also to be noticed and the learned Judge noticed it-that it is rather remarkable that, in circumstances like this when there was a very large crowd gathered for it is said that the whole country side turned out at the baitch-so many witnesses should be so unanimous in recognising and remembering the persons who followed and assaulted Bako.
9. There is also a suggestion made that hostility amongst landlords accounted for the evidence that has been given against those accused persons. I am not disposed however to think there is much in that.
10. The point which weighs with me in considering what attitude we should adopt towards the verdict of the jury is this, that the case, as I have said, rests entirely on oral evidence, and those who saw the witnesses and heard them are the most competent to judge as to the value of what they said. In my judgment, we ought to uphold the verdict of the jury and reject the reference.
11. The result is that effect is given to the verdict and the accused are acquitted on all the charges. They will be discharged from their bail.
12. I agree.