1. This is a reference under Section 307, Criminal P.C., by the learned Sessions Judge of Murshidabad. In the case before us five persons Nibharesh Mandal, Mohsin Mandal, Saber Shekh, Abed Shekh and Mobed Shekh were tried before the Sessions Judge of Murshidabad and a special jury, for causing the death of a woman named Sushila Dasi.
2. The jurors before whom the trial of these accused persons was held returned a unanimous verdict of not guilty. In the Judge's opinion, the verdict of the jurors was unreasonable and against the weight of evidence. The learned Judge considered that in the interest of justice the case should be sent in reference to this Court. The five accused persons named above, it may be noticed, were related to each other. The accused Mohsin Mandal is a brother of Nibharesh Mondal; Saber and Abed are their cousins; Abed is Nibharesh's sister's husband. The accused Nibharesh Mondal was charged with having committed murder on or about the midnight of 5th February 1937, in the village of Dohail, by intentionally causing the death of Sushila Dasi, his former mistress, by causing a deep cut wound on her neck.
3. The other four accused persons Mohsin, Saber, Abed and Mobed were charged for abetment of the offence of murder of Sushila Dasi. The charge against them was that on or about the midnight of 5th February 1937 they abetted commitment of a murder of Sushila Dasi, and in consequence of their abetment, the accused Nibharesh Mandal did the murder of the aforesaid Sushila Dasi. (After discussing the evidence bis Lordship had no hesitation in coming to the definite conclusion that the accused persons, were guilty of charges brought against them, and proceeded.) Nibbaresh Mandal is guilty of committing an offence under Section 302, I. P.C.; and the other accused persons are guilty of committing offences under Section 302 read with Section 114, I.P.C.
4. The unanimous verdict of the jury before whom the accused persons were placed on their trial was in favour of the accused persons. The jurors held that they were not guilty of the charges brought against them. In disagreeing with the unanimous verdict of the jury in a case like one before us, this Court has to consider whether the jurors were entirely unreasonable in the conclusion arrived at by them or whether it was impossible for the jurors to say that the guilt of the accused had been proved. The High Court does not exercise the power vested under Section 307, Criminal P.C., in setting aside the verdict of the jury, unless it is perverse or} patently wrong, and is convinced that in giving effect to the same it would not meet the ends of justice, On the materials before us which have been examined by us with all possible care and attention we have no hesitation in holding that the verdict of the jury in the case before us cannot be accepted. On the materials before us, we are in agreement with the opinion of the learned Sessions Judge that Majiaton Bibi, the maid-servant, and Haripriya Dasi, mother of Sushila, have told the truth, and that the accused persons placed on their trial are guilty of the murder of Sushila. We accept the recommendation of the learned Sessions Judge. and hold that Nibbaresh Mandal is guilty of an offence under Section 302, I.P.C. We further hold that the other four accused persons Mohsin Mandal, Saber Shekh, Abed Shekh, and Mobed Shekh are guilty of offences under Section 302 read with Section 114, I.P.C.
5. The question of sentence to be passed on the accused persons held guilty of the offences charged against them received our anxious consideration. It was Nibharesh Mandal who engineered the crime. The other accused persons were all under bis influence; and all of them were at the time, when Sushila was murdered, acting at the direction of Nibharesh Mandal On the evidence before us, which we consider to be wholly reliable in its nature, the murder was premeditated, deliberatecruel; it was ruthless and brutal in its nature. All who took part in the com-mission of the offence may justly be condemned to die. In oases where many, persons are involved, we hesitate to pass sentence of death on all of them, and try to discriminate. (See in this connexion the observation of Pulton J. in Queen-Empress v. Basvanta (1901) 25 Bom 168.) Infliction of five sentences of death in one and the same case, is apt to fail of the effect which such sentences would' otherwise have. It is possible for us in the case before us to distinguish the case of Nibharesh Mandal, and discriminate the same from those of the four other accused persons, regard being had to the parts taken by them in the murder of the woman Sushila Dasi. The learned Sessions Judge stated this in his charge to the jury:
If you find that at the time of commission of the crime by Nibbareeh these persons rendered him assistance (the evidence is that they held Sushila down) facilitating the commission of the crime, you will find them guilty
(under Sections 302/114, I.P.C.), thus discriminating the cases of the accused persons. In the absence of any extenuating circumstances the sentence of death is passed on Nibharesh Mandal, the sentence passed on each of the other four accused, namely Mohsin, Saber, Abed and Mobed is that of transportation for life.
6. I entirely agree. Even if the evidence of the maid-servant Majiaton Bibi be regarded by itself for any reason as possibly open to suspicions there remains the evidence of Haripriya, the mother of Sushila. Although not an eyewitness, her evidence, if believed, is incompatible with any other possibility than that Sushila was murdered that night in her house by these five accused persons. I can conceive of no reasonable ground on which the jury could doubt her evidence. Neither can I find any reasonable ground on which the evidence for the finding of blood-stains in the house could be doubted. These two pieces of evidence in particular fully corroborate the evidence of Majiaton Bibi, the only eye-witness in the case, and the refusal of the jury to accept it was in my opinion unreasonable and perverse.