Mookerjee and Chatterjea, JJ.
1. This is a reference under Section 807 of the Criminal Procedure Code in respect of fifteen accused persons; they were tried jointly with another who has been acquitted by the Court below. The accused were charged with offences under Sections 147, 148 and 325 read with Sections 149, 343 and 379, Indian Penal Code. The Jury returned a divided verdict. By a majority of four to one, the Jury found all the accused not guilty of all the charges. The minority verdict was that all the accused except Abdul Kader were guilty of all the charges except the charge under Section 379. The Sessions Judge accepted the unanimous verdict that Abdul Kader was not guilty and that Anwar Ali was not guilty under Section 379. He further accepted the verdict of the majority of the Jury in so far as they acquitted Mamfru Chaudhuri, Fateh Chaudhury and Lakshmikanta of the charge under Section 148; but he declined to accept the majority verdict in other respects and decided to refer the cases of the accused other than Abdul Kader (who was acquitted) to this Court for consideration.
2. The prosecution was instituted by reason of an incident which is alleged to have taken place on the 11th January 1922. The subject matter of the dispute is a large khasmahal jote in Cox's Bazar subdivision which is now held under Government by Abdul Latif Chaudhury, who purchased it from Asrafali on the 30th March 1919. The land, which was formerly let out by Ashrafali to a number of tenants, abuts on a river on three sides and is protected by an embankment. This was damaged by a cyclone in 1916 with the result that Ashrafali took advantage of the catastrophe to bring the land into khas possession and to cultivate it by means of annual tenants. This caused some dissatisfaction among them, specially as Abdul Latif since his purchase in 1919 continued the policy initiated by his predecessor. This resulted in a series of small disturbances leading to proceedings under the preventive sections of the Criminal Procedure Code. The difficulty of the situation was increased when an adverse title was claimed by one Gaganeswari, the wife of Babu Ramratan Chaudhuri, who set up some persons as her tenants. In such circumstances there were as might have been expected, attempts by the rival claimants to secure exclusive possession of the disputed tract; this sufficiently accounts for the disturbed condition of the property during the years 1919, 1920 and 1921. On the 25th March 1921, there was a proceeding under Section 107 of the Criminal Procedure Code, which resulted in an order made on the 9th April 1921, when some members of the accused party were warned not to molest Abdul Latif and his men. This was apparently ineffectual, and a second proceeding under Section 107 was instituted on the 1st July 1921, which terminated on the 15th November 1921, when it is alleged the accused party filed a petition and agreed not to molest Abdul Latif and his adherents. Not satisfied with this Abdul Latif applied on the 13th December 1921, to the police for protection and a constable was deputed to keep the peace. On the 29th December 1921, the accused party informed the police that Abdul Latif was wrongfully cutting the paddy. On the 1st January 1922, the police intervened and directed both the parties not to enter the land till the orders of the Magistrate could be obtained. On the 3rd January 1922, the Sub-divisional Magistrate of Cox's Bazar made an order under Section 144 of the Criminal Procedure Code directing several members of the accused party not to enter the disputed land. Abdul Latif was not slow to make the best use of this order and began to cut the paddy. This led to an application by the accused party to the Sub-divisional Magistrate on the 9th January 1922. He directed that if there were any ripe crops on the disputed land they should be cut and placed in the custody of a reliable third party. He farther directed the police to make an enquiry and to submit full particulars on or before the 16th January 1922. The case for the prosecution is that meanwhile on the 11th January 1922, the accused party assembled on the land in large numbers and by the use of force carried away their paddy worth Rs. 3,000. Information was sent to Abdul Latif who deputed his son Shamser Alam, his naib Habibulla, his durwan Rahmatulla and his muharir Harischandra Biswas. These with some of the tenants formed a party and pushed forward. The inevitable conflict followed. It is said that Lakshmikanta fired a pistol; Fatechand struck Shamser Alam with a gun; the latter in his turn fired a couple of rounds from his gun. Lathis were freely used on both sides. Notwithstanding guns and lathis however no very serious injury was inflicted on the men on either side. But it is asserted that three members of the complainant party, namely, Shamser Alam, Habibulla and Tafazar Hossain were taken off to the khamar houses where the Chakma tenants had stacked their paddy and were there detained for the night. Tafazar Hossain was released next morning; but the other two were taken from place to place and were ultimately removed beyond the limits of the district of Chittagong into the district of Aracan in Barma, where they were let off. The first information was lodged by Maju Mia on the 12th January 1922, and the prosecution was commenced. The case was taken up by the Sub-divisional Magistrate, who committed the accused to stand their trial before the Court of Session, with the result already stated.
3. We have examined the evidence on the record, and in this we have been assisted considerably by a careful analysis prepared by Mr. Dutt, who has placed before us all the relevant materials and commented on them. He has pressed us to hold that the story as narrated by the witnesses for the prosecution is substantially true and that the guilt of the accused has been established beyond reasonable doubt. Mr. Mukerji has, on the other hand, reviewed the evidence and has contended that there are so many discrepancies in it that the Court should not form on the basis thereof, an opinion adverse to the accused and contrary to the verdict of the majority of the Jury. He has pointed out that the common object of the unlawful assembly as specified in the charge is said to have been twofold, namely, first to forcibly remove the paddy reaped and stacked by complainant and other tenants of Abdul Latif, and secondly, to take possession of the land of the jote. No serious attempt was made in the evidence to establish the second of these objects; the evidence was directed in the main to show that the common object of the assembly was to remove the paddy which had been reaped and stacked by the tenants of Abdul Latif. It is significant that nothing is stated in all this, as to who had cultivated the land and raised the crop. The case for the defence is that notwithstanding all the endeavours of Abdul Latif, neither he nor his tenants ever obtained possession of the land or brought it under cultivation. The majority of the accused disclaimed all interest in the land and denied participation in the alleged riot; four of them indeed pleaded an alibi. But five of the accused maintained that they held the land in the locality which had led to disputes with Abdul Latif. We are concerned, however, not so much with the truth or otherwise of the theory suggested by the accused as with the case for the prosecution. The proof of the case against the prisoners must depend for its support, not upon the absence or weakness of explanation on their part, but upon the positive affirmative evidence of their guilt that is given by the Crown. Tested from this point of view the evidence for the prosecution discloses serious flaws. A careful comparison of the diverse accounts of the incident as narrated by the witnesses for the prosecution shows material discrepancies and this indeed is the reason why the Sessions Judge accepted the majority verdict of not guilty in respect of the charge under Section 148 against Mamfru Chaudhuri, Fate Chaudhury and Lakshmikanta. There are obvious lacunae for instance not one chakma tenant has been examined, indeed none has ever been mentioned by name. We cannot further overlook suspicions circumstances as to the first information. As the Sub-divisional Magistrate pointed out in his order of commitment there is a divergence as to the time of the occurrence. According to the complainant it is stated to be about 1 or 2 P.M., the Sub-Inspector of Mangdaw in his case diary shows the hour of occurrence at 7 A.M. in the heading but in the body there is an erasure so as to make the time 2 P.M. There is some plausibility in the suggestion made by Mr. Mukerji that an exaggerated, if not an untrue story of abduction was started because the first information was lodged unusually late. Furthermore there are suspicious features with regard to a paper which is alleged to have been signed by one of the accused Kshitish Chandra Deb Rai on the 14th January 1922, and made over to the police as containing an undertaking with regard to the possession of the land. It is not necessary for us to set out all the discrepancies and exaggerations in the evidence; but finally we cannot ignore the absence of all medical evidence though two of the complainant's party are said to have been severely injured and detained in hospital for about 25 days. On the whole evidence we are of opinion that the majority of the Jury had abundant reasons to distrust the evidence adduced in support of the case for the prosecution. That evidence does not show that the incident alleged, happened at the time, in the place and under the precise circumstances narrated on behalf of the prosecution. We cannot in these circumstances accept the recommendation of the Sessions Judge and dissent from the verdict of the majority of the Jury.
4. We cannot, however, leave the case here. We observe that the Sessions Judge in his letter of reference made the following observation:
Four of the members of the Jury were Hindus and one Musalman. One of the accused Kshitish Chandra Deb Rai is an educated Hindu bhadralog. I cannot but think that the majority of the Jury returned a deliberately perverse verdict in order to secure the acquittal of this man.
5. We had occasion in the case of Emperor v. Dhananjoy Raha (1923) 38 C.L.J. 384 to record our opinion as to the manifest impropriety of an extra judicial observation of a somewhat similar character in a letter addressed by a Sessions Judge to this Court in connection with a reference under Section 307 of the Criminal Procedure Code. In the present case, we thought it right to give an opportunity to the Sessions Judge to explain the grounds for the opinion expressed, as Mr. Dutt, who appeared for the Crown, assured us that he had not been able to discover on a scrutiny of the record any material whatever which could justify the observation in question. We set out here the following extract from the explanation submitted by the Sessions Judge:
6. As regards the grounds of the remark in my letter of reference I cannot but think that the majority of the Jury returned a deliberately perverse verdict in order to secure the acquittal of this man (Khitish Chandra Deb Rai) the case was disposed of six months ago and I have not the record before me. I am not sure if the educational qualifications of the accused Kshitish appear from the record, but it was apparent during the trial that he had been educated in English. My impression is that he had had a University education. I did not question the jurors as to the reasons for their verdict and I have no actual knowledge on the point whether the minority of one was the Muhammadan juror or one of the others.
7. The opinion of the Judge as to what considerations have influenced the Jury to return a verdict which he considers wrong must always be a matter of inference In the present case the grounds of my opinion may be stated concisely as follows:
1. The evidence that a riot took place and that Kshitish took a prominent part in it is overwhelming.
2. In the circumstances it was impossible to find any of the accused guilty without returning a similar verdict against Kshitish.
3. Kshitish is an educated Hindu bhadralog of much the same social standing as four of the five jurors.
4. The Jury returned a verdict of not guilty by a majority of four to one.
8. We have ascertained from the Sessions Judge as also from Mr. Mukerji the names and status of the jurors in this case:
1. Babu Surendranath Banerji, Foreman, clerk in charge of the office of District Traffic Superintendent, Assam-Bengal Railway, pay Rs. 220 a month.
2. Babu Nirmal Chandra Das Gupta, typist, Chittagong Port Commissioners' office, pay Rs. 100.
3: Babu Abinas Chandra Dutt, clerk, Chittagong Commissioner's office, pay Rs. 60.
4. Babu Bijaychandra Baruya, ticket printer, Assam-Bengal Railway, pay Rs. 90.
5. Maulvi Khalilur Rahman, Government pensioner, Rs. 27 a month.
9. The impropriety of speculative remarks as to the motives which it is asserted by the Sessions Judge, might have influenced the opinion of the jurors or of a majority amongst them, cannot be exaggerated. The list of jurors is prepared, it may be presumed, with care and after enquiry. At the trial any juror may be challenged either by the accused or by the prosecutor. When the jurors have been chosen they are sworn under Section 5 of the Indian Oaths Act, 1873, as prescribed by Section 281 of the Criminal Procedure Code. By his oath the juror undertakes that he will well and truly judge between his Sovereign and the prisoner at the Bar and will give a true verdict according to the evidence. In these circumstances, it may be reasonably expected that a judicial officer would hesitate to charge a juror that he has broken his oath. Such an imputation is unfair to the juror; for it must be remembered that it is made behind his back, without his knowledge and after he has finished his labours, apart from the fact that a juror suffers from the disadvantage that the law does not give him an opportunity to state the grounds for his opinion. The imputation is unfair to the Judge himself; it detracts from the value of his opinion as it is impossible to determine how far his judgment, which the law requires him to express upon the evidence, may or may not have been affected by speculative considerations of this character. The imputation is unfair to the accused, who is entitled to have due weight attached by this Court to the opinion of the Jury as expressed by their verdict, without aspersions, unverified and unverifiable, made against them. The imputation is unfair to this Court whereon the duty is imposed to consider the entire evidence and to acquit or convict the accused after giving due weight to the opinions of the Sessions Judge and the Jury; such opinion of the Sessions Judge is manifestly his opinion on the merits of the case based on the materials placed before him at the trial and does not include his speculations as to what might or might not have influenced the jurors. We cannot but express our regret equally with our surprise that a Sessions Judge should make an observation of this character which is of no assistance in the determination of the case by this Court and may indeed create embarrassment as the acceptance of the opinion of the Judge on the merits of the case may be construed to involve an adoption of his aspersions upon the jurors. We are not called upon to consider what course a Judge should adopt if in the course of the trial the Jury should be proved by legal evidence to have misconducted themselves. In England in such circumstances it is said the Jury might be discharged and a new trial directed; see Emperor v. Olu Mahamad (1902) 7 C.W.N. 31 (S.N.) and the note to Davies v. Pierce (1787) 2 T.R. 68; Brooke N.C. 120 Tidds Practice (1828) volume II, page 922. A similar course might be followed if the misconduct was discovered after verdict; Witham v. Lewis (1714) 1 Wilson 48 R. v. Yeadon (1862) L. & C. 81, R. v. Fowler (1821) 4 B. & Ald. 273, R. v. Murphy (1369) L.R. 2 P.C. 535, Winsor v. Queen (1866) L.R. 1 Q.B. 390. But whatever room for divergence of judicial opinion there may be as to the action to be taken when jurors; have misconducted themselves, this much is plains that no action can be taken unless the misconduct has been established by what is regarded as evidence in the eye of the law. It would, in our opinion, be most unfortunate, if persons of respectability called upon to discharge the responsible duty of jurors were exposed to the risk of aspersions of this character. It is open to the Judge to disagree with the Jury; it is indeed incumbent upon him to do so, if he is clearly of opinion that such a course is necessary for the ends of justice; but this does not require that he should make reflections upon the conduct of the jurors, which are not supported by evidence on the record. We further observe that in this case the Judge has assumed that the Muhammadan juror must have been in the minority though the Jury included Hindus, Buddhists and Mahomedans. We do not appreciate the bearing of this upon the decision of the case, and we need only recall the disapproval expressed by this Court in Nibaran v. King Emperor (1907) 11 C.W.N. 1085, 1091 where the estimate of the trial Judge as to the credibility of witnesses was made dependent upon his classification of them as Hindus and Muhammadans.
10. After the most anxious consideration of the entire evidence in this case, we have come to the conclusion that the reference must be discharged, the verdict of the majority of the Jury accepted and all the accused acquitted and discharged from their bail.