1. This is a reference under Section 307, Criminal P.C. by the learned Additional Sessions Judge of Jessore. The five accused Karim Dai, Akhej Sheikh Molla, Kiran Goshal, Matiar Rahaman and Esmail Molla were tried with two others under Section 395, I. P.C. The two others were acquitted by the learned Judge in agreement with the verdict of the jury. The jury found the five accused not guilty and the learned Judge being dissatisfied with this verdict has refused to accept it and has referred it to this Court as being perverse and against the weight of evidence. After they had given their verdict the learned Judge put these further questions to the jury.
Q. What is your view of the occurrence?
A. We think there was a theft and not a dacoity.
Q. What leads you to take that view?
A. Because no neighbours were produced as witnesses.
2. We know of no power given to the learned Judge to put questions to the jury after their verdict except those contained in Section 303, Criminal P.C. and under that section the only questions which can be put are such as are necessary to ascertain what their verdict is. That is to say, there must be some doubt in the Judge's mind as to what the jury mean by the verdict which they have given. There must be some ambiguity in the answer given by the jury. It certainly does not mean that the judge is entitled to question the jury about the reasons why they have found a particular verdict. Our attention has been drawn to a decision of a Criminal Bench presided over by Suhrawardy, J., in a ease of reference under Section 307, Criminal P.C. to the effect that it is necessary, advisable and useful, that a Judge should enquire what is the reason for the verdict of the jury. We know of no authority under the Code for this. It might be most useful in cases of reference under Section 307 that when there has been perversity in the verdict or something which looks like perversity some explanation of the verdict might be available for the Court. All that we can say is that we cannot find any authority in the Criminal Procedure Code for any such procedure. Those having been the answers given by the jury the learned Judge has referred this case.
3. Now the first thing that strikes one is, that upon the facts of this case the answers given by the jury are not at all unreasonable. In this house belonging to a man who has since died, and in which the witness Balaram and others ware living in a state of dependency on him it is suggested that there was a dacoity. This story depends largely upon the evidence of Balaram and the identification of the accused depends entirely upon him. There is evidence to support him that there was a dacoity because other witnesses saw parts of furniture and other things thrown about and other signs which might indicate that a dacoity had taken place and there was the further evidence that some of the goods, which it is suggested were taken away were found in the possession of Esmail. He gave an explanation of this by saying that they had been deposited with him by another of the suggested dacoits Mozam who was one of the two who have been acquitted.
4. Curiously enough the noise or the disturbance caused by the dacoits did not reach the ears of any of the neighbours and no neighbour has been called to corroborate the statement of Balaram and the other inmates of the house except the president of the Local Board, who was called to the house after the dacoits had gone away. The jury therefore might reasonably have come to this conclusion that there was evidence of theft because some of the goods from this house were found in the possession of Esmail and that there was some evidence of dacoity because of the goods having been thrown about the house. But, as against that no neighbours were called to corroborate Balaram and other inmates of the house and bearing in mind that the case for the defence was that this was a story put up by Balaram and others in order to cover theft committed by themselves in the house of their host it is not unreasonable that the jury came to the conclusion that they were dissatisfied with the evidence for the prosecution. Now, in addition to those matters the learned Judge pointed out to the jury a very large number of discrepancies. They may be of a minor kind but in their cumulative effect they must have influenced the mind of the jury; and there is the evidence that there was a discussion between Balaram and one Gopal Ghose before Balaram went to report to the police; and Gopal Ghose had not been called.
5. For all these reasons we cannot say that the jury were wrong to the extent that no reasonable jury would have come to the same conclusion. We cannot help feeling the fact that the whole of the identification depended upon one witness, must have very greatly affected their minds. Especially in view of the fact that the dacoity was supposed to have taken very nearly an hour, during which time the other members of the house must have had ample opportunity of seeing the features of some of the dacoits and yet none of them has been able to give evidence of identification.
6. For these reasons we are of opinion that this reference must be rejected and the accused acquitted and discharged.
S.K. Ghose, J.
7. I agree.